'A.>^.»
IMAGE EVALUATION
TEST TARGET (MT-3)
^^ji^
^4
A
•^^^V^
%g
1.0
I.I
■^ ^ i2.2
us
■ 40
2.0
I
L25 1 ,.4
^
•4 6" ~
>
J%
/
V
Photographic
Sciences
Corporation
•N^
.^«
;\
23 WEST MAIN STRUT
WIftSTIR.N.Y. 14StO
(716)173-4503
CIHM/ICMH
Microfiche
Series.
CIHM/ICMH
Collection de
microfiches.
Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques
Technical and Bibliographic Notes/Notes techniques et bibliographiques
The Institute has attempted to obtain the best
original copy available for filming. Features of this
copy which may be bibliographically unique,
which may alter any of the images in the
reproduction, or which may significantly change
the usual method of filming, are checlted below.
D
D
D
□
E
Coloured covers/
Couverture de couleur
I I Covers damaged/
Couverture endommag^e
Covers restored and/or laminated/
Couverture restaur^) et/ou pellicul6e
Cover title missing/
Le titre de couverture manque
Coloured maps/
Cartes giographiques en couleur
□ Coloured inic (i.e. other than blue or black)/
Encre de couleur (i.e. autre que bleue ou noire)
I I Coloured plates and/or illustrations/
Planches et/ou illustrations en couleur
Bound with other material/
Reiii avec d'autres documents
Tight binding may cause shadows or distortion
along interior margin/
La re liure serr^e peut causer de I'ombre ou de la
distortion le long de la marge intArieure
Blank leaves added during restoration may
appear within the text. Whenever possible, these
have been omitted from filming/
II se peut que certaines pages blanches ajout^es
lors d'une restauration apparaissent dans le texte,
mais, lorsque cela 6tait possible, ces pages n'ont
pas 6tA f ilmies.
L'Institut a microfilm^ le meilleur exemplaire
qu'il lui a M possible de se procurer. Les ddtaiis
de cet exemplaire qui sont peut-dtre uniques du
point de vue bibliographique, qui peuvent modifier
une image reproduite, ou qui peuvent exiger une
modification dans la methods normale de filmage
sont indiqufo ci-dessous.
n
Additional comments:/
Commentaires suppi6mentaires:
Coloured pages/
Pages de couleur
Pages damaged/
Pages endommag^es
Pages restored and/oi
Pages restauries et/ou pellicuides
0 Pages discoloured, stained or foxed/
Pages ddcolories, tachettes ou piqu6es
I I Pages damaged/
I I Pages restored and/or laminated/
□ Pages detached/
Pages d^tachies
0Showthrough/
Transparence
I I Quality of print varies/
D
Varioui pagingt.
Quality in^gaie de I'impression
Includes supplementary material/
Comprend du materiel suppKmentaire
Only edition available/
Seuie Edition disponible
Pages wholly or partially obscured by errata
slips, tissues, etc., have been ref limed to
ensure the best possible image/
Les pages totalement ou partiellement
obscurcies par un feuillet d'errata, une pelure,
etc., ont M fiim^es A nouveau de fapon A
obtenir la meilleure image possible.
This item Is filmed at the reduction ratio checked below/
Ce document est film* au taux de rMuction indiquA ci-dessous.
10X 14X 18X 22X
12X
16X
20X
26X
30X
24X
2SX
32X
e
Stalls
s du
lodifier
r une
Image
The copy filmed here has been reproduced thanks
to the generosity of:
University of Windsor
Law Library
The images appearing here are the best quality
possible considering the condition and legibility
of the original copy and in Iceeping with the
filming contract specifications.
L'exemplaire fiimi fut reproduit grfice d la
ginArositt de:
University of Windsor
Law Library
Les images suivantes ont 6t6 reproduites avec ie
plus grand soin. compte tenu de la condition et
de la nettetA de rexemplaire fiimd, et en
conformity avec les conditions du contrat de
filmage.
IS
Original copies in printed paper covers are filmed
beginning with the front cover and ending on
the last page with a printed or illustrated impres-
sion, or the back cover when appropriate. All
other original copies are filmed beginning on the
first page with a printed or illustrated impres-
sion, and ending on the last page with a printed
or illustrated impression.
The last recorded frame on each microfiche
shall contain the symbol — ^> (meaning "CON-
TINUED"), or the symbol V (meaning "END"),
whichever applies.
Les exemplaires originaux dont la couverture en
papier est imprimte sont filmte en commengant
par Ie premier plat et en terminant soit par la
dernidre page qui comporte une empreinte
d'impression ou d'illustration, soit par Ie second
plat, salon Ie cas. Tous les autres exemplaires
originaux sont film6s en commenpant par la
premidre page qui comporte une empreinte
d'impression ou d'illustration et en terminant par
la dernidre page qui comporte une telle
empreinte.
Un des symboles suivants apparattra sur la
dernidre image de cheque microfiche, selon Ie
cas: Ie symbols —► signifie "A SUIVRE", Ie
symbols V signifie "FIN".
Maps, plates, charts, etc.. may be filmed et
different reduction ratios. Those too large to be
entirely included in one exposure are filmed
beginning in the upper left hand corner, left to
right and top to bottom, as many frames as
required. The following diagrams illustrate the
method:
Les cartes, planches, tableaux, etc., peuvent Atre
film^s d des taux de reduction diffirents.
Lorsque Ie document est trop grand pour Atre
reproduit en un seul clich6, il est fiimA d partir
de Tangle sup6rieur gauche, de gauche A droite.
et de haut en bas, en prenant Ie nombre
d'images nicesssire. Les diagrammes suivants
illustrent la m^thode.
Brrata
to
pelure,
in A
n
32X
1
2
3
t
2
3
4
5
6
■
■■■■■nniilWrinBBWMIMMtWWWWIWIMIIIMMWMIIIMII.IIIWIJIWIIIWI
n
i
A R G r M i: N T S
IX r.Kir \LK or
T H E U 1\ I T i: ] ) S T A T E S ,
wnir
SLPpi.i:Mi:N'r axi> appeni>ix.
ruiosKNTij) To Tin;
COMMISSIOXERS l!NJ)HII TUB TREATY
RETWKKN
Cltl- AT BRITAIN AND THE UNITED STATES,
FOR THK
FFXAT. SKTTLlvUEXT OF TJIK CLAIMS
OF THE
HDDSON'S BAY AND PUUET'S SOUND AGRICULTDRAl COMPANIES.
C. Gushing, Counsel.
I
WASIIIXCJTON CITY:
M'CII-I, >V; WITIII-UOW, POINTERS AND HTEUEOTYPKRa.
1868.
:\IEMORIAL OF THE HUDSON'S BAY COMPANY.
Brithh and Amcvionn Joint Cowmhs^ion on the ITufhons Bay
and ruiiet's Sound A(jrk'ultural CompanicH Claims.
To the Honorable the Commissioners:
The Governor and Conipai. ^ of Adventurers of Enrrland
trading into Iludsoji's ]i;iy, commonly called tlic Hudson's
Bay Compmiy, claimants, submit the following memorial and
statement of tlioir claims upon the United States ; and for
facts and considerations in support of such claims respectfully
declare :
That, in the year 1840, and for a great number of years pre-
vious thereto, the Hudson's ]]ay Company were in the free and
full enjoyment, for their own exclusive use and benefit, of cer-
tain rights, possessions, and property of great value, within
and upon the territory of the northwest coast of America
lying westward of the Rocky Mountains and south of the 4Dth
parallel of north latitude; such rights consisting as well in
extensive and valuable tracts of land, whereupon numerous
costly buildings and enclosures had been erected and other
improvements had been made, and then subsisted, as of a right
of trade which was virtually exclusive, and the right of the
free and open navigation of the river Columbia within the
said territory.
That the rights possessions, and property thus held and en-
joyed by the Hudson's Bay Company, had been acquired while
tlie said territory was in the ostensible possession and under
the snvoreignty and government of the Crown of Great Britain,
and the Compiiny held and enjoved the same with the knowleiUc
and consent, and under recognitions, both express and implied,
of the Crown of Great Britain, and by persons acting under its
authority.
That, by the treaty C( ucluded between Great Britain and the
aimm
nBsssn
f<
United States of America on the 1 ')tli day of June, 1S4<I, while
the Iluilson's llay Company wore in tlie full and free possession
and enjoyment of tlieir said riixlits, it was in effect declared to
be desirable, for the future welfare of both countries, that the
state of doubt and uncertainty which had theretofore prevailed
respecting the sovereignty and rrovornment of the territory on
the northwest coast of America, lying westward of the Ivocky
Mountains, should be finally terminated by an amicable com-
promise of the rights mutually asserted l>y the two parties,
upon such terms of settlement as might be agreed upon ; and
thereupon, by article I, of the sai<l treaty, the line of boundary
to be thereafier observeil between the territories of Great
Britain and those of tiie United States of America, then in ques-
tion, was established by mutual compromise and agreement.
That, by article HI, of the said treaty, it was provided : That
in the future appropriation of the territory south of the 40th
parallel of north latitude, as provided in article I, of the sai<l
treaty, the possessory rights of the Hudson's Bay Company, and
of all JJritish subjects who might be already in the occu))ation of
land or other property lawfully acquired within the said terri-
tory, should be respected ; and by article II, of the same treaty,
it was further provided, that from the point at which the 40th.
parallel of north latitude should be found to intersect the great
northern branch of the Columbia river, the navi'fation of the
said branch should be free and open to the Hudson's Bay Com-
pany, and to all British subjects trading with the same, to the
point where the said branch meets the main stream of the Colum-
bia, and thence down the said main stream to the ocean, with free
access into and through the said river or rivers, it being under-
stood that all the usual portages along the line thus described
should in like manner be free and open.
That, under the settlement of the boundary line agreed u[)on
by the said treaty, and defined by the first article thereof, the
said territory, whereof the Hudson's Bay Company then had
the actual and exclusive control, possession, use, and enjoy-
ment as aforesaid, fell within and under the sovereignty and
Government of the United States ; and, under a just construc-
tion of the said treaty, and of the obligation therein assumeti,
i
r>
S40, while
possession
ocI.'ivcmI to
;, that the
prevailed
rritory on
.lie Uocky
jable com-
o parties,
ipon ; and
boun<lary
of Great
en in ques-
reement.
ded: That
f the 40th
d' the said
npany, and
3upation of
t:aid Terri-
imc treaty,
;h the 40th.
;t the i^reat
tion of the
5 Bay Coni-
ame, to the
thcColum-
n, with free
eing und or-
is described
igreed upon
thereof, the
y then liad
and en joy -
•eignty and
St construe-
in assumed,
that the possessory rights of the Hudson's Uuy (Joinpany
should be respected according to the true intent and meaiiinr-'
of tiic same, the United States became and were bound to up-
hold and maintain the said Company in the free, nndisturlied,
and continual occupancy, use, and enjoyment of ail the rights
possessions, and property then by them possessed and held,
and to j)rotect and indemnify them from aggression ami in-
juries, by or through any person acting, or elainiing to act,
under the authority or the laws of the United States,
That the rights Avhieh the United States were so held to re-
spect, and in the enjoyment of which they were bound to u]>-
hold and maintain the (,'ompany, consisted of:
Firxt. The free and undisturbed possession, use, and enjoy-
Tnent in perpetuity, as owners thereof, of all the ))Osts, estal)-
lishments, farms, and lands held and occupied by them for
purposes of culture or pasturage, or for the convenience of
trade, with all the buildings and other improvements there-
upon.
Sceoiullii. The right of trade in furs, peltries, and other ar-
ticles, within and upon the whole of the said territory, and the
right of cutting timber tiiereupon for sale and exportation.
Thu'iJIji. The right to the free and open navinration of the
Columbia river, from the point at which the 40tli j);irallel of
north latitude intersects the great northern branch of the said
river down to the ocean, with a like free and open use of the
portages along the said line.
That the said rights have not been respected accordin"- to
the terms of the said treaty and the obligation of the United
States resulting therefrom; hut, on the contrary, by and
through the aggressions and proceedings of persons aetini:, or
claiming to act, under the authority of the (jJovernment, or of
the laws of the I nited States, have been violated and restricted,
and in great part extinguished and destroyed; and the Com-
pany, by reas'^m of the said aggressions and proceedings, have
been compelled in many eases to relinquish the same.
That, by the treaty concluded on the Ust day of July, l-SfJ.']
it was agreed that all questions between the United States
authorities on the one hand, and the Hudson's ]}ay Cornnanv
V 1 ^
■HWHU
JUMBHWWHmBHHBH
0
on the other, with respect to the possessory rights and claims
of the latter, should be settled hy tlio transfer of those ri;i;1it3
and claims to tlie(irovern!nent of the I iiitcd States for uu ade-
quate money consideration.
And the claimants now submit a d(>tailed statement and ^ ilu-
ation of the said rii^hts, severally, under their distinct heads
or classes; and of the claim of the ir-idson's Hay (yom))any
under and by virtue of tiie said treaty and of tho premises
herein set forth :
1. T-AND3 AND TRADTXC. KSTAr.TJSMKXT55.
1
The forts, posts, establishinonts, farms, pastures, and other
lands, witli the buildint^s and improvements therouf)on, held
and possessed within the said territory by the Hudson's ]>ay
C(tmpanj5^, for their own sob; use and benefit, at the time of
the said treaty of the l")th June, 1840, and for a long time
before, which had, in some instances, been acquired from prior
occupants, and, in others, had been erectcMl and made, and
orii^inally settled and oecupieil, by the Company, were as
follows :
The post of Vancouver, so called, C(nisistin<i; of a sto(d<aded
fort, with dwelling-houses, store-houses, school-houses, houses
for servants, shops, barns, and other outbuiblings, with a stock-
ade and bastions, erected at great cost, and of the value of (ifty-
five thousand poundssterling, ( i;")r),000;) other dwelling-houses
and granaries, dairies barns, stables, and farm-buildings appur-
tenant to the said post for the purposes of (arming and trade,
built at various points near to the main ])ost at Vancouver, and on
Sauve's island, together with saw-mills and flouring-mills, forges,
workshops, and store-houses, all erected at a great cost at
the time, and of the value of I'orty-five thousand pounds ster-
ling, (€4'), 000;) the tract of land occupied, possessed, and
used by the Company for its |)OSt at Vancouver, including its
stations, enclosed and cultivated fields, and th(; j)asturage for
its cattle, horses, and sheep, extending in front along the
bank of the Columbia river about twenty-five miles, and ba(d<-
ward from the said river about ten miles; and Menzios' island,
I [\ I
UBnDMB|UailH
and claims
hoso vi<i;1it3
for nil adc-
t and ^ ilu-
iiict he. ids
(yojujiany
0 premises
and other
iipon, licld
Ison's ]>ay
he time of
lon<^ time
from prior
made, and
y, were as
stockaded
ises, houses
til a stock-
lue of (ifty-
linii-housos
ings appur-
and trade,
iver,and ou
lills, forges,
L'at cost at
ounds ster-
iessed, and
(duding its
stitrage for
along the
, and I)a(dv-
ies' island,
so-called, occupied and used for pasturage; these tracts of
land, with the agricultural improvements made thereupon, at
a great cost, were at the time of the said treaty, of the value
of seventy-live thousand pounds sterling, ( C7.'».0(l(l. )
'^riie said several sums, making together the entire sutn of
one hundred and seventy-five thousand pounds sterlin*'-,
(i;l7o,()00,) equal to eight hundred and lifty-onc thousand six
hundred and sixty-six dollars and sixty-seven cents, (iircSr)!,-
»j»i») ()7,) the claimants aver to bo the value of the fort, build-
ings, lands, and establishment, at and near Vancouver and on
Sauve's island, which they are entitled to claim and receive for
the same.
A large portion of the land thus occupied, possessed, and
used, has, since the loth day of June, l.S4(;, been taken from
the possession of the Company by American settlers claiming
under the land-laws of the United States, and the Company
was dispossessed of the fort and establishmetit at Vancouver,
and the land near thereto, by the orders of the military ofiicers
of the United States, in the year 18G0.
The post at Cham ro kg, consisting of one dwelling-house, one
granary, and outbuildings, all of the value of three thousand
pounds sterling, (i;;J,OUO;) and of the enclosed land of the
value of two hundred pounds sterling, (£200;) and, in addi-
tion, certain town lots in the town of Champoeg, purchased of
American settlers, of the value of two hundred pounds ster-
ling, (£200;) making together the entire sum of three thou-
sand four hundred pounds sterling, (£0,400,) e(iual to sixteen
thousand five hundred and forty-six dollars and sixty-seven
cents, (Sl(j,o4<J 07.)
The post at the mouth of the Cowlitz uiveu, consisting of
dwelling-house, granaries, and outbuildings, erected by the
Company, of the value of four hundred pounds sterling, (£4<)0;)
and the land occupied and used by them, of the value of one
hundred pounds sterling, (i;lO0 ;) making together the entire
sum of five hundred pounds sterling, (£500,) equal to two
thousand four hundred and thirty-three dollars and thirty-
three cents, ($2,438 33.)
The post at Fort George, commonly called Astoria, con-
8
' i
I ''
'I
if
felstinf^ of (hvoH'mg-liousos, storo-Iiouses, ami OMtl)uil(liiia;s, ac-
quircil by tlic (.)onip;iiiy from tlio prioi* occupants, of tlio cost
and value of scvon IiuiuIihmI and fifty pounds sterling, (€7o0;)
und two acres of land whereupon the said post is built, and
thereto appertaining, possessed and used by the (.'onipany, and
be'.ig of the value uf one hundred pounds sterling, (Xl<)();)
makiuL!; toi^ether the entire sum of ei;:'iit humlred and fifty
pounds sterling, ( €S50,j equal to four thousand one hundred
and thirty-six dollars and sixty-seven cents, ($4, loll (37.)
This post was taken possession of in 1849-50 by the officers
of the Uniteil States,
The postal Capk Disappointment, consisting of a dwelling-
house and store erected by the Company, of the value of ono
thousand pounds sterling, (.€1,000;) and the land appertain-
ing to the post occupied, used, and possessed by them, being
one mile S((uare, and of the value of two thousand pounds
sterling, (X2,000 ;) making together the entire sum of tnree
thousand pounds sterling, (.€3,000,) equal to fou^ ;een thou-
sand six hundred dollars, ($14,000.)
The last-mentioned land, or a portion of it, since the date
of the said treaty, was taken possession of by the officers of
the Uu ed States for a light-house or other public purpose.
The post at Chinook, or Pillar Kock, a fishing station, con-
sisting of a curing-house erected by the Company, of the cost
and value of two hundred pounds sterling, ()iil200;) and the
land used and occupied by them for said station, of the value
of one hundred pounds sterling, (=C100;) making together the
entire sum of three hundred pounds sterling, (£'MH),) equal to
one thousand four hundred and sixty dollars, ($1,4(30.)
The post at UaipQ(JA, consisting of dwelling-house, barn,
stables, and outbuildings, erected by the Company, of the cost
and value of three thousand pounds sterling, (i^S, 000;) and the
land used and occupied by them for farms and pasturage, being
a mile square in extent, a portion of which was fenced and
cultivated, all of the value of two thousand pounds sterling,
{Jj'2,000;) making together the entire sum of five thousand
pounds sterling, (iiO,000;) equal to twenty-four thousand three
■1i
9
liMiiijis, ac-
of the cost
iiig, ( CToO;)
s built, ami
mipany. and
iiig, (il<M);)
cd and fifty
)iic hundred
i;'.i; 07.)
f the ofViccrs
fa dwcUing-
raluo of ono
d appcrtain-
tlicm, being
sand pounds
mm of tnvoe
Uiieeu thou-
nce tho date
he olTiccrs of
ic purpose,
station, con-
y, of the cost
00:) and tho
, of tho value
; together tho
500,) equal to
l,4G0.)
;-house, barn,
y, of the cost
000;) and tho
sturage, being
LS fenced and
unds sterling,
five thousand
housand three
ol th
liuudrc'l and lliirty-tliroe «loll;irs jiud tliirtv-tlii-(>o cents,
/<.) I •'•1' •>•» ,
(^"^-4. •>■)■> -fj. I
The wiiole of this l.isl-inentioned land is ikav occupied by
an Aniri'iciiii setrh.T, elaiming to hold the sauuj under tho laws
'lilted St;it(.'S.
The post of Xi:/,-l*i;ii('K,s, eommonly Ciilled \V;ill;i-\Valln,
consisting of two dwelling-houses and servants' houses, store-
houses, ami other buildings and outbuildings, walls and bas-
tions, nil built Iiy tlu; ('onipaiiy. of ailobe brick, and of tho
cost and value of three tlioii>and two hundred nouinls sterliti".
( £-J,:^Oi) ; I the land on the Columbia river oceu|)ied and used
as belonging to the -aid post, and also the land along tho
bank of the said river \\>r.] fur the lauding of the Company,
of the value of teu tliousand poundi sterling, ( t:li»,(ji)0 ;) tho
lau'U siin'oiiiiding tli fort, used as pasturage, of the value of
two ihousiind ])o'imus sterling, (C^.OOO:) the farm near tho
])e,-it, beii'.g of some tliivty 'cres, moi'c or less, in extent, of
the value of one tlious'ind live hundred pounds sterliii",
(€1,.0U1);) making togcthe; the eritiri! sum of sixteen thou-
sand seven bun li'cd pounds sterling, ( .t'lG.TOO;) equal to eighty-
one thousand two hun<lred and seventy-three dollars and
tbirty-tiiree cents, (.'ii><Sl,278 oo.)
This post and the lands were abandoned by the servants of
the Company binder the orders of ihe I'niteil States authori-
ties ill Is.jo.
The post at l<\)rt Hall, consisting of houses, shops, stores,
mills, aiid outbuildings, horse-parks and walls, all of adobe
brick, and of the value of throe thousand j)ounds sterliii",
(.£3,000;) the lands (.'iiclosed and cultivated, of the value of
one thousand pounds sterling, ( Cl.OOO;) and the lands occu-
pied and used for the pasturage of horses and cattle, of <n'eat
extent, and of the value of one thousand pounds sterling,
(£1,01)0;) making together the entire sum of five thousand
pounds sterling, (.£.'), 0<>0;) equal to twenty-four thousand three
nundre<l ant. thirty-three dollars and thirty-three cents,
This post was necessarily abandoned by the Company on
•1 .M
. frr
msnaammmamm
} Kl
10
I \l
• i
1 1
i f i
■ :
^
account of hostilities between the United States antl the In-
dian tribes in 18o().
The post at IjOISi';, consisting of houses and ouihouscs, hnild-
ings, wall and bastions, and liorsc-itavks, all built u? adobo
brick, and of the cost and value of one thousand five hundred
pounds sterling, (£l,r>00;) about three miles square of land
around the post, used ainl occupied by the Company for iho
pur))ose of agriculture and pasturiig(\ all of tlic value of two
thousand pounds sterling, (C2, <)(•():) making together the en-
tire sum of three thousand five hundred pounds sterling,
(^3,000;) equal to seventeen thousand iind thirty-tliree dol-
lars and thirty-three CL-nts, (?^17.0o0 C-1.)
This post was necessarily aba-nihjned by the CoU)pany in
consequence of the hostilities between the United States and
the Indian tribes of ISf'ji.
The post at Okanagax, consisting of dweirmgdu)uses, ser-
vants' houses, store-houses, outbuildings, all of ad)be, stock-
ade and bastions, erected by the Company, and of the value
of two thousand five hundred pounds sterli' •• ( l'2,oU(>;) thirty
acres of land at the fort, used, occupied, and cultivated by
the Company, of the value of one thousand p(junds sterling,
(,£1,000;) and near and belonging thereto, othur lands for tlie
pasturage of herds of horses, of the value of five hundred
pounds sterling, £500;) making tog(^ther the entire sum of
four thousand ])Ounds sterling, ( C4, 000;) equal to nineteen
thousand four hundred and sixty-six dollars and sixty-seven
cents (8lO,oOG 07.)
The post at CoLA'iLi;, consisting of dwellingdiouses, servants'
houses, shops, stores, outbuildings, stables, barns, yards, stock-
ades and bastions, flouring-mills and appurtenances, all ei'ccted
by the Company, and of the cost and value of ten thousaiul
pounds sterling, (£10,000;) three hundred and fifty acres of hind
occupied and used and cultivated as farm-land, and about ji^e
m.iles scjuare of land occupied and used for pastunige of their
cattle and horses, of the value of five thousand pounds ster-
ling. (£5,000;) the White Mud farm, (ap))urtenant to this j)o-t.)
with a house, barn and stable, store and oulbuildings, erected
upon it by the Company, of the cost and value of one thou-
s I
11
anil the In-
»uscs, builtl-
It of lulobo
ivo IuumUhmI
Kive of laud
d;iuv for llio
,'aluc of two
;tlicr the cn-
iJs stei'lin;,',
y-lhrce dol-
Coinpany in
nl Slates and
i<--l>()uscs, sev-
udtbo, stock-
of the value
J.rxJO;) thirty
cultivated by
inids stevlin,!!,
lanil> for ilic
five hundred
■ niiro sum of
to niueteeu
A sixty-seven
uses, servants'
,, yards, stock-
ces, all eroded
ten thousand
ty acres of laud
•and about Ji^o
turage of their
,1 pounds stcr-
,it to this post.)
Mings, erected
0 ot one thou-
?nnd pounds sterling:, ( €1,000;) the land used and occupied
as a farm, thirty acres of extent, and of the value of five
huinli'cd pounds stcrlin,Lr, (€")0t):) nialcin/jj to^^i'liii-r the o'l-
tire sum of sixteen thousand five liui.dred [)0U:ids sterlin.]:^,
(ClOjtJ'tO;) equal to eif^hty thousand three hundred dollars,
(i?80,30O.)
Till' post at IvooTANAFs, consi'^tin lc of houses and stores
erected by the Company, of the co'^tand value of five hundred
]")Ounds sterling:, f l'^"*"*;) the; land oecu])ied and used for tlic
post, ;ind near thereto, of small extent, of tlie value of five
hundred pminds sterling, ( t-lOO ; > nnikinir togethe!" the entire
su.m of one tiiousands poumls sterling, (1^1,000:) equal to four
thousand eight liundrMl and sixty-six dolhirs and sixty-seven
cents, (S4.8()(; 07.)
Tlic ))ost at l'r-AT-lli:Ans, consisting of dwelling-houses and
stores, anil of a small piece of land enclosed as a horse-yard, of
the value of six hundred pounds steidiog. (4!i)0();) equal to two
thousand nine hundred and twenty dollars, (."^12,020.)
All tiiese jiosts were established and maintained for the
support of their servants, and of others in the emjdoymetit;
uf oi- trading with the Company, aiid were not. only iuilis-
peiisable fur carrying on their trade in tlie country south of
the -tiUh parallel of north latitude, but were also of great
value for the suppoi't of tludr posts and trade in the country
north of that iiaralUd. They were connected with and de-
pendent upon ea(di other, and were of gi'cater value to the
Company when used together. The fariiis and pasture-lands
were also of LTreat annual value.
It may bo added, that the discoveries of gold and other
minei'als, which have been made within a f(>\v years past upon
lands ^ithin the territoi'v occupied by the Company, prove
their value to lie much higher than any estimate whieh coubl
have been put upon them before their general mineral wealth
was known ; and although it is not intended to urge, this fact
as ;i distii'.ct ground of (d;iim, yet it is manifestly fair that ic
should not be witliout inlluonce in the assessment to Im- nnide
!)y the Commissioners.
The Company liavc been, as beforo stated, deprived of tlio
!
fT
V [
^BBaaammmBmmmm
12
'A
I*!
I ;
];,
I
I '
possession of some of their posts and fjinns find other lands
by American settlers claiming under the land-hnvs of the
United States; of some by tiio action of tiie oflicers of tlio
United States; and of others by the iio.stilities between tlio
United States and Indian tribes ; Avhich s;iid tribes had, until
the treaty of the loth June, 18GG, been under tlie control of
and at peace with the said Company.
The privation of the annual profits and rents of these
farms and lancb;, and the occupation of thidr posts, and the
campellod ai)andontnent of the said f)osts ;ind farms and lands,
have caused to the Company damaf^^e and loss to an amount
exceeding fifry thousand pounds sterling, (i:">0,000.)
The value of the several forts, posts, establishments, farms,
pasturages and lands, with the buildings and improvements
thereon, amounts in all to the sum of two hundred and thirty-
five thousand three hundred and fifty pounds sterling,
(.£235,3r)0 ;) making, together A\:itli the sum of fifty thousand
pounds sterling (.£50,000) for loss sufi'ered as :-.tated, the entire
sum of two hundred and ci2;htv-five thousand tliroo iiundred
and fifty pounds sterling, (285, -joO;) equal to one million three
hundred and eigbtv-cight thousand seven hundred ami three
dollars and thirty-three cents, (1,388,708 So.)
Which the Hudson's Bay Company claim and are entitled
to receive from the United States.
\<
11. RIGHT OF TKADE.
The chief business of the Hudson's Bay Companj' in the
year 184G, and for a great number of years before, was, and
now is, the trade with Indian tribes in furs, peltries, and
other articles. It was a trade of great n)agnitude, carried ou
in Oregon over a wide range of countr}', and involved an ex-
tensive foreign commerce. Large sums of moiicy were an-
nually expended in it, and the returns were highly profitable
ami important to the general prosperity of the Company.
For the projjcr and beneficial currying on of that trade, the
Company required, not only to hold and possess the posts, es-
tablishments, farms, and other lauds already described, but
mn
13
itlier lands
;iAv?; of tlie
-er.s of tlic
etwcon the
s liiul, until
; control of
ts nf tlii'so
;ts, llMil the
s junl hinds,
an iiniount
0.)
cuts, farms,
i|)rov(Miients
1 and thirty-
ds sterling,
-[J thousand
m1, the entire
reo hundred
million three
(1 and three
I are entitled
ipany in the
'ore, Avas, and
peltries, and
Ic, carried ou
v'olved an ex-
11 ey were an-
hly profitable
Coun)any.
that trade, the
5 the posts, cs-
described, but
also to have the control, possession, and use of extensive tracts
of country ; and tlu^y had in fact, at aiid iKdurt; the date of
the treaty of the loth June, 184G, in their ooiitrol, possession,
and use, for such })urpo.ses, a lar^ie port' m of the country
lyinc, as hereinbefore mentioned, on the nortlnvest coast of
America, to the westward of the Rocky ]S[ouiitains. south of
the 4lUh parallel of north latitude, and known as Orciion.
And they had therein and thereupon a ri;j;]it of ti'ade which
was virtually exclusive.
The profits derived from their said trade, before and in the
year 1^40, exceeded in each year the sum of seven thousand
pounds sterling.
vVnd such right of trade, and the control, possession, and
use of the said territory for the purposes tliereof, independ-
ently of their foreign commerce and the sale of timber, ex-
ceeded in total value the sum of two hundred thousand pounds
sterling.
rnder the settlement of the boundary line by the treaty of
the I'Uh June, 1S4U, the said territory fell under the sov„
ereignty and government of the United States ; and by reason
thereof, and of the acts and proceedings had and taken under
and by color of the authority and of the laws of the United
States, the control, possession, and use of the said territory
by the Hudson's Bay Company, for the purposes of their trade,
and their rights in the exercise and carrying on of their trade
in furs, peltri(!s, and other articles, as W(dl as their trade in
the shipment ami sale of timber and their foreign commerce,
were restricted and denied, and in efi'ect wliolly taken away
and lost; and for their said rights, and the forced relinquish-
ment and loss thereof, they claim the said sum of two hundred
thousand pounds sterling, (.€200, 000 ;) equal to nine hundred
and seventy-three thousand three hundred and thirtv-threo
dollars and thirty-three cents, (.Sl>7o,.'3:}o o'^>.}
III. NAVICATIUX OF TUE rULCMOlA UIVKIl.
The Hudson's Bay Company aver that, under the treaty of
the loth June, lH4t], by article IV of that treaty, they have
rr
wntm
"( :
14
I i
• '(
. (i
I' •
I
' I
I w
a ri^rlit- to the froo and open n:ivi2;:itif)n of tlio north br.inch of
th(> (ViluTi)l'ia vivoi'. from tiio jioiiii at \vliicli the samo is inter-
sected hv the 4'Jtli paralhd oi' noiih latitude to the in.ain stre;iiii,
ar.d thence ti) the ocean, with free access ami passage into and
tlirou:j;h the saiil river oi- I'ivei's ; and that JJritish subjects trad-
inrf witli them have an equal ri^htof iiavit^ation ; and that, to tlio
Company, and to those thus tradin^j; with tliem, the portages of
the said river or rivers along the lines thus described ought to
be, and of right are, free and open.
The right thus to navigati; tlie said river or rivers, and to
pass unobstructed over their portages, was and is of gi'cat value
to the (Company, and is also of great and increasing ])olitical
anil national value to the I nited States : and i'or its relinijuish-
nient and transfer the (^)mjlany claim and are entitl(>d to re-
ceive the sum of three hundred thousand j;ounds sterling,
(i;oUO,0(Kj,) equal to one million four hundred and sixty thous-
and dolli.rs. {.":>l,4(;o,000.)
In addition to the special statements hereinbefore contained,
the Hudson's Ibiy Company submit that, throughout a lung
series of years, they (wpendod largo sums of mone}' and de-
voted much labor and time in efforts to bring the native ])opu-
lation into such a condition that safe and profitable relations,
in re:rard to trade and general intercourse, couM be c^' a hlisluMJ
with them. The exploration of the country, the expenditure
for labor, iiiul oi' the parties engaged, the opening of roads,
the stroni: force roquircil as a protection against the Indians,
their conciliation brought al)out, sometimes by a resort to for-
cible measures, but chieflv bv liberal dealini:, (dfected a irreat
change in the (Condition of tiie counti-y, vqv. . ing it fit for
immediate settlement. These were substantial benefits to the
Governmeiit and people of the United States, under wdiose
sovereignty this territory fell, and (-ould not have been secured
without a very large outlay. It is, of course, impossible to
give any minute -(letails of expenditures of this (dass, and of
the advantages whicli th(! liuited States have derived from
them; but the justice of extending to tin; Hudson's Day Com-
pany liberal compensation, foumledon these considerations, i--
■\r>
orth branch of
samo is iutev-
e main stream,
jssagc into and
1 pulijocts trad-
antl tiiat, totho
the ijorta^iios of
cribcMl ought to
rivers, and to
•; of great value
'a sing ])olitical
r its reVuKiuisli-
) entitU'd to re-
)unds sterling,
md sixty thous-
'fore contained,
oughout a long
money and de-
lie native jinpu-
itahle relations,
Id !)(' (/siahlislKMl
the expenditure
le'ning of roads,
list tlie Indians,
,' a resort to for-
elfected a great
; . ing it fit for
il benefits to the
es, under \vliose
ave been secured
se, impossible to
his class, and of
ive derived from
dson's Bay Corn-
considerations, i-
too apjiarent to allow of any reasonable liesitatioii in admit-
ting it.
It is obvious tliat. of tlie tlirce classes of ebiims set forth
ill the foregoing mciaoriul, tlie first only cnnsi.-ts of |iarticii-
lars wliicji, ioi tiieir natiir<\ admit of direct pnxd' (d" value;
but witli respect even to these, tlie honorable the Commissioners
are c;i mostly requested to notice, that circumstnnces w Inch the
claimants could in no dei^rei^ prevent or contrul, have "reatlv
I imiiaired the means of iirodiieing such pi-ool in the positive
and complfte form wiiiidi, oiherwise, tliey would have been
enalded to do. Among these circumstances may be specified
the ag^-r(\ssive acts and the general conduct of American
citizens, and id' persons aeiiug un.Kjr the authority of the
United States, commencing sliortiy after he l-uli June, 1840,
and contiiiiiiiig from year to year, by which tiie rights of the
ch-iii:iaiits under that treaty were violated and denied, and
their [iroperty and jn)Ssessioiis were, in some instances, usur[)ed
and taken from tiiem, am!, in others, were necessarily aban-
doned. This course of conduct was, perhaps, to be expectt't',
from 'lie anomalous position in wliieh the Company were
piacc'I — a foreign corporation (>xercisiiig a (iinisi sovereignty
and exclusive rights over territory tr;insferred to a Power
viiose policy ill dealing with sueh territory was diametrically
Ojiposed to that which the Company jjursiied, and I'rom which
they derived their j.rofits. But however this may be, it is an
undouhted eonsequenee to the Company tiiat their rights and
possessions have been t ii(>r(d)V made id' comparatively little
value, and tiie dillieulty of obtaining evidence upon them has
Iceii rendered very great. This diiliculty has been essentially
increased by the lapse of time since the claims first arose.
A delay of seventeen yi^ars intervened, during which the
U.iited States, while faildig to cause the rights of the lliid-
80:1 s iJ.iy ('ompany to lie respected, continued to refuse any
S!i: i-taetory settlement of their demands. The inevitable
eflect cd' this delay, now exttoided to nearly twenty years,
h;i> heen to remove l)y death, or otherwise, the greater number
of important witnesses, and to weaken the evidence which is
Still a\ailable, both by the remoteness, in point of time, of
4
V
' 1 , .
I I
M ]
10
tlic facts to be established, and by reason of tbo natural de-
cay nr of the disnppearaiK'c of inucli wliicli CDiistituto'l the
value of tlie riuiits and possessions i'nr \vliicli the present
claims are made.
With respect to the second and third classes of claims set
forth, the claimants solicit the attention df the honoralile the
Commissioners to the fact before alluded to, that they arc of a
nature which does not admit of a formal ;nid precise valuation
by testimony. Consisting ns they do of important rights of
trade, and of other rights of a public and nard'otial character,
tliev are manifestly of great value. ]>ut the estimation to be
put upon them, and the amount of the money consideration to
be paid for their relinquishment and transfer, must be settled
by the judguient of the Commissioners, founded upon their
own experience and knowledge, aided by public documents
and the recorded opinions of statesmen and writers of au-
thority, anil by such general estimates umler oath as it may
be possible to obtain.
The claimants have made the foregoing statement and ob-
servations with respect to evidence for the purpose of urging
for the serious consideration of the honorable the Commis-
sioners, that in their examination and decision of the present
claims, they ought not to be restrained by the rules Avhich are
observed in the trial of ordinary issues in courts of law.
Those rules, under the circumstances and for the reasons above
declared, the claimants contend, should be liberally modified
and relaxed in the present case: and they respectfully, yet
formally and solemnly, protest, that a strict application of
them, in the consideration of their claim, would be unreason-
able and unjust.
In C(jnclusion, the Hudson's Bay Company submit that,
upon the facts and circumstances, and for the reasons and
considerations herein set forth, they are entitled to claim and
receive from the United States the several sums here following:
.Fir.sf. For their forts, posts, establishments, farms, pastur-
age, and other lands, with tiie buildings and improvements
thereon, as hereinbefore set forth, the sura of two hundred
m
^■HmHIHUh
17
(^ natural dc-
iistituted the
the presGiit
of claims sot
ioiior;il)le the
tlicv arc of a
jisc valuation
taut ri;^lits of
iKil chai-acter,
/luuition to be
nsiileration to
lUst be settled
2(1 upon their
lie documents
writers of au-
3ath as it may
ement and ob-
posc of urging
e the Counnis-
of the present
•ules which are
courts of law.
e reasons above
erally modified
^spcctfully, yet
applieation of
Id be uurcason-
y submit that,
he reasons and
ed to claim and
; here following:
5, farms, pastur-
1 improvements
of two hundred
and eighty-five thousand three hundred and fifty nounds ster-
ling, (C2S5, :]:;().)
' Sccniidlii. For the right of trade, as hereinbefore set forth,
. the sum of two hundred thousand pound sterling, ( CiiOCUUO.)
i Thlrdlif. For the right of tlio free navigation of the Colum-
bia river, as hereinbefore set forth, the sum of three hundred
thousand pounds sterling, (£300,000.)
i The said several sums making together the entire sum of
seven hundred and eighty-five thousand three hundred and
fifty pounds sterling, (i:785,350,) equal to three million eight
hundred and twenty-two thousand and thirty-six dollars and
sixty-seven cents, (,$3,822,030 (JT.)
And the Hudson's Bay Company ask that the honorable the
Commissioners will, after due examination, maintain the said
claim as just and reasonable, and will decide that the United
States ought to pay to the Company, in discharge of their said
claims and rights, and for the transfer of them, the said sum of
seven hundred and eighty-five thousand three hundred and
fifty pounds, in sterling money of Great Britain, equal to
. three million eight hundred and twenty-two thousand and
thirty-six dollars and sixty-seven cents in gold, to be paid at
the time and in the manner provided by the said treaty of the
1st July, 18(53.
And the claimants declare that, for the said sum of money,
or for such otlier sum as the honorable the Commissioners may
justly award, they are ready and villing to transfer to the
United States all their rights and claims according to the
terms of the said two treaties.
Ciis. D. Day,
Counsel for the Iludisoiis Bay Company.
Dated April 8, 1805.
3 M
\\
' li '
. ,'
■ f if
1 1
i
' iM
fil
3IEM0RIAL OF THE I'UfiET'S SOUND AIIICULTUIIAL COMPANY,
liri/ish ami American Joint CdininixHioii on the Ifmhcniii .I>ay
and .l*u<ji't'H Sound A<jriviiUu)'al (JinnpanuH Claims.
To the Honorable the Commfssioxers:
The Pnget's Sound Agricultural Company submit the follow-
ing memorial and statement of their claims upon the United
States; and for facts and considerations in support of such
claims, respectfully declare:
That in the year 1(S40, and for many years previous thereto,
the Puget's Sound Agricultural Company were, and since have
been, engaged in the business of agriculture and farming, and
of breeding and raising live-stock ; ajid for the purposes and
in the course of carr^nng on their said business, they acquired
and became possessed as owners thereof, before the said time,
of certain farms and extensive tracts of land in the territory
lying on the northwest coast of America to the south of the
49tli parallel of north latitude and north of the Columbia
river.
That, upon portions of their said lands, there were erected
and made by them buildings, enclosures, :>nd other improve-
ments of great cost and value; and the Company also owned
and possessed, and pastured and fed upon the said lands, their
said live-stock, consisting of large and valuable herds of cat-
tle and horses, and ilocks of sheep; from the sale and disposal
of which, and of the other productions of their said farms and
land, they received great annual returns and profit.
That by article IV of the treaty concluded between the
United States of America and (rreat Britain, under date of
the 15th day of June, 184G, it was j)rovided: that the farms,
lands, and other projierty of every description belonging to
the Puget's Sound Agricultural Company, on the north side <it'
the Columbia river, should be confirmed to the said Company:
but that in case the situation of those farms and lands shouKl
8
8
c
a
li i
10
(Jldims.
i
mit tlio foUo^Y-
,on the United
ipport of such
cviousthcveto,
and since liavc
,d fanning, and
le purposes and
J, they acquired
c the said time,
in the territory
he south of the
the Columbia
JVC were erected
other improvc-
lany also owned
said Umds, their
jle herds of cat-
ale and disposal
r said farms and
profit.
cd between the
n, under date of
that the farms,
ion belonging to
the north side nl
lesaid Company:
and lands should
be considered by the United States to be of public and politi-
cal importance, and the United States (jovcrnincnt should
siujuify a desire to olitain possession of tlio whole, or of any
part thereof, the |)roi)ei-ty so rei|iiii'ed shonld be; transferred
to the said Governtnent, at a proper valuation, to be agreed
upon between the |)arties.
That the Government of the United States has not, at any
time, signified to the Company a desire tiiat any of the said
y)roperty should bo transferred to the said (Jovernment, at a
valuation as provided by the treaty, nor has anv transfer
thereof been made; but the Company have ever since con-
tinued to be the rigiitful owners of the said hinds, farms, and
other property, and entitled to the free and undisturbed pos.
session and enjoyment thereof.
That, by a convention concluded between the two Govern-
ments on the 1st day of July, I8G0, it was agreed that all
questions between the United States authorities on the one
haiul, and tiie Pugot's Sound Agricultural Company on the
other, with respect to tiie rights and claims of the latter,
Bhould be settled by the transfer of such rights and claims to
the Government of the Ignited States for an adequate money
consideration.
And the claimants aver that the riiihts and claims of the
Puget's Sound Agricultural Company, referred to and intended
in and bv the said convention, are their riy-hts and claims in
and upon the said huids, farms, and other property of every
description which they so held and possessed within the said
territory, and which, by reason of the said treaty of the 15th
Jnne, 184G, and according to tiie terms of the fourth article
thereof, llic United States became and were bound to confirm.
And of the said farms and other property, they now submit
to the honorable the Commissioners a detailed statement and
valuation, as follows:
First. Tlie tract of land at Nisqually, extending along the
shores of Puget's Sound, from the Nisqually river, on the one
aide, to the Pu-yal-lup river on the other, and back to the
coast-range of mountains, containing not less than two hundred
and sixty-one square miles, or one hundred and sixty-seven
( I
20
I ;
>■ I
tliousand and forty acres ; of wliicli said tract of land a portion
is improved and under cultivation for farming ;ind agi-icultiire,
and tlie remaining portion thereof was occupied and used \>y
tlio Company for the grazing and pasturage of their cattle,
horses, and sheep, and I'or cutting wood and timher thereon,
and for other purposes connected with their business ; the whole
being of the viiluo of one hundred and sixty thousand pounds
sterling, ( Cl()0,0()') ;) the fort, bastions, houses, stores, barns,
shops, and outbuildings, with the fencing and enclosures at tho
main post and establishment, and the; houses, barns, outbuild-
ings, fencing, and enclosures at the other f)oints on the said
land, of the cost and value of four thousand pounds sterling,
(4,000;) these two sums making together tli(! entire sum of one
hundred and sixty-four thousand pounds sterling, ( ClOl, 000,)
equal to seven hundred and ninety-eight thousand one hundred
and thirty-tliree dollars and thirty-three cents, {.S70S, 103 Co.)
Scoondff/. The land and farm at the Cowlitz river, known
as the Cowlitz farm, consisting of three thousand five hun-
dred and seventy-two acres, more or less, of which upwards
of iift(!en hundred acres are improved and under cultivation
for farming and agricultural purposes, and the remaining por-
or
tion is used for cattle and sheep-ranges and pasturage, and t
other purposes connected with the business of tho said Com-
pany ; the said last-mentioned land being of the value of
twenty thousand pounds sterling, ( 1^20,000;) the establishment
and buildings of the Cowlitz farm, consisting of dwellinL'-
houses, saw-mills, stoi'cs, granaries, barns, stables, sheds, ami
niimeries, and of a great extent of fencing and enclosures, of
the value of six thousand pounds sterling (€0,000;) the saiii
two last-mentioned sums makinij to-fotlier the entire sum of
twenty-six thousand pounds sterling, ( C20,0()0,) equal to om
hundred and twenty-six thousand five hundred and thirty-tlirct
dollars and thirty-three cents {^V2{)j)P>Z 33.)
TJiinib/. 'i'he Company also owned and possessed live-stock
consisting of three thousand one hundred head of neat catth
three hundred and fifty horses, and five thousand three hu'
dred sheep, of the value of twenty-five thousand pounds st
ling, (-£2f),000;) which were pastured and fed on their s;
ei'-
21
Df lainl ii portion
iind !i,:;ri(MiUiire,
lied nnd used l>y
of their cattle,
timber tliorcon,
siiioss; the wliolc
thousand pounds
cs, stores, barns,
enclosures at the
, burns, outbnild-
)oints on the said
1 pounds sterling,
entire sum of one
,rling,(i:l(;i,00O,)
isand oiieliundred
,ts,(>^708,103 33.)
iWt'A river, known
housand five hun-
of which upwards
1 under cultivation
the remaining por-
pasturage, and for
,s of the said Com-
t of the value of
,) the establishment
isting of dwelling-
, stables, sheds, and
(r and enclosures, of
"(£0,000:) the sain
r the entire sum oi
r>,000.,) equal to oiu
red and thirty-thrc
53.)
possessed live-stock
I head of neat cattle
thousand three hu!i
ousand pounds stov-
d fed on their sm
KtikIs before and at the time of the conclusion of tlic treaty
of tlic lotli June, 1S4(>, and afterwards, until t]i(> time of tlio
commission of the acts and injuries hereinafter mentioned, by
wliieli the greater part of the said live-stock was cither killed
or driven away, and entirely lost to the Company, within u
few years after the time of the said treaty.
And the claimants aver, that although at the time of the
conclusion of the treaty of the l")th dune, lS4l), and for a lon<'
time before, they held and possessed the said lands, farms, and
other property as owners tln.'reof, and tlie United States, by
the terms and according to the conventions contained in tin;
last treaty, undertook and were bound to confirm them in tho
same: yet the I'nited States failed to execute or grant to tho
said Company any formal title of confirmation (jf their said
lands, farms, and other f/roperty ; and by reason thereof, and
of tlie acts and proceedings of officers of the United States,
and of American citizens, and others assuming to act under
the authority of the laws or of the (Jovernmcnt of the United
States, the Company were deprived of the use and enjoyment
of a large portion of their lands, farms, and other property,
and of tho rents, fruits, and profits tiiereof ; their pasturage
was destroyed or taken from them ; iheir live-stock killed or
driven off and wholly lost to them ; and their entire business
broken up or rendered unprofitable.
And the claimants have, in consequence, suffered loss to the
amount of fifty thousand pounds sterling, ( C.">0,000,) equal to
two hundred and forty-three tliousand three hundred and
thirty-three dollars and thirty-four cents, (8243,333 34.)
It may be added, as indicative of the value of their property,
and in some degree of the nature and extent of the injuries
to whieli the company were exposed, that while they were
thus suffering from aggressions, and were disturbed in their pos-
session, as above stated, a portion of their lands was assessed,
for the purpose of taxation, at a value of S817,00<>; and they
were compelled to pay taxes thereupon from year to year,
and have actually paid for such taxes the sum of .Sl4,rj<J0.
In conclusion, the claimants submit to the honorable the
Commissioners, that liujv are entitled to claim and receive the
i:h!Mii
: I : ;l
(I ^r' '
II
Vf
iihii/ii:
T:i;!
i
22
fair value of thoir said funns and extensive tracts of land, and
a ju<t coinpcnsatjon for the capital exponildl in tlu; ae((nisition
and iuiprovcmcnt ut" tlicir said i)r()pei'ty, and in lliu linildi:i;:;s>
fort-i, mills, trading cstaMisliniunts, ami cMclosures ilicro-
on ; and, further, compensation for the loss of their live-s'oek,
and for other loss suffered by them in conse(iucnce of the aets
and proceedings hereinbefore complained of. And they ask
that, upon the facts and circumstances, and for the reasons
and considerations hereinbefore set forth, the honorable
tlie Commissioners will, after due examination, maintain
their claim as just and reasonable, and will decide that
the United Statics ought to pay to the said Company, in
satisfaction ami dischur^'e of their said riifhts and claims, and
as a proper valuation ami adequate money consideration for
the transfer and reliiKiuislunent of them, the several sums
hereinbefore snccifieil and now followiu'', that is to siiv:
For the farms ami land, w n the ijuildiiii's, forts, tradinj;
establishments, and iinprovcuients thereon, one hundred and
ninety thousand pounds sterling, (£liMJ,<)UO ;) for the ' iss of
tlie live-stock, and other loss suffered by them by reason of
tiie acts and proceedings hereinbefore complained of, fif'^y
thousand pounds sterling, (X'">0.O()(J;) making together the
entire sum of two hundreil and forty thousand pounds sterling,
money of Great Britain, (€240,000,) equal to the sum of
one million one hundred and siAty-ciii;ht thousand dollars,
(.':?1,1(J8,000,) to be puid in gold, at the time and in the manner
provided by the treaty of 1st July, 18(3;3.
iVnd the claimants declare that, for the said sum of money,
or for such other sum as the honorable the Commissioners may
justly award, they are read}'' and willing to transfer to the
United States all their rights and claims, according to the
terms of the said two treaties.
Ciis. D. Day,
Oiiniselfor Puget's /Sound Agr'l Companij.
Dated April 10, 18G5.
I
; '•!',
af 1(111(1, and
iKMjuisition
u lHiil<li:i,i;>*>
urcs tlicrc-
i' livc-.s*;ock,
) of tho nets
11(1 lliey ask
tlic reasons
lionoi'al)le
II, niaintiiin
[Iccidc that
Jompaiiv, in
claims, and
Icralion for
overal sums
:o say:
)rts, trading
lundi'cd and
r the ' iss of
»y reason of
ned of, fifi-y
:ogcther the
lids sterling,
the sum of
and dollars,
n the manner
m of money,
^sioners may
iisfer to the
•din^ to the
Day,
r'l Company/.
mim To AiiKxn ^iemiikial.
'I
1 Hi'ltixli (i)iil Aiinricdn Juint dnin/i/SKion on tin' lluihnn'H liai/
iiinl /*ii(/('f's Sotonl Aijrlcnltnral CoinjxtnieH Claim.
Jriiisniucdi as it appears by the evidence of record that tlic
lands elainicd by the lliidson's Bay Coiiij)any, of each of the
posts (d' A'aiicoiivcr and C(dvile, greatly exceed in value tho
re>peetivL' amounts stated and claimed for them in the memo-
rial ill this cause filed, it is moved hy the counsel for the
claimants that, in or(lcr to equalize their claim with the proof,
thi'V be permitted to amend the statement of the value of the
said lands contained in their memorial to the effect and in the
manner following, that i.-, to say:
1. That an addition of .t'^'y.QOO sterling, equal to 8413,-
GGiJ (J(!, be made to their claim for the land at A'aiicouver, and
that such cliiim be taken and held to be for the sum of one
hundred and sixty thousand pounds sterling, equal to $778,-
GGO GO, instead of f^eventy-five thousand pounds sterling, e(tual
to !<oG">,OIJO.
2. That an addition of £0,500 sterling, equal to 8-lG,230 34,
be made to their claim for the land at Colvile and White Mud
farm, and thai such claim be taken and held to be for fifteen
thousand pounds sterling, equal to 873,000, instead of five
thim.-and five hundred pounds sterling, e(iual to 82G,77G GG.
And that, in conformity with such amendment, the state-
ment in the meuKvial of the aggregate value of the rights of
the claimants, and the conclusions by them therein taken, be
reformed and increased by adding thereto the said sum of
£85,000 sterling, ami the said sum of £0,500 sterling, making
together the sum of ninety-four thousand five hundred pounds
sterling, equal to four hundred and fifty-nine thousand nine
fnr-
t:
■4MMH
IMMUPililliS
I -ll
24
hundred dollars, and that the entire amount of their claim be
taken and licld to be the sum specified in the said statement
and conclusions, together witli the further sum of four hundred
and fifty thousand nine hundred dollars thereunto added.
Oils. D. Day,
Counsel for IL B. Co.
June 10, 18G8.
iii-!'
•t i
,1 .;■,....
■ I 11::' v
r' .,
i|i
!iii;i:i:^,
I'iill
^immmmm
leir claim be
id statement
four iiiindi od
0 added.
[). Day,
//. IL Co.
OK 'I'lIK
HUDSON'S BAY COMPAIN Y.
I To the J/onor((b/e the Com/ui\s.slonrrs: —
- Tho claims of l!;o Hudson's Bay Coiiipaiiy no-aiiist tlio
United States -ire founded on tlie tliii-d article of tlie
treaty l)et\vecn Great Britain and the Tnited States, of
June loth, A. D. 1840, as follows:
Art, hi. In tlic future aj)i)ropriation of tlie territory
south of the forty-ninth parallel of north latitude, iis pro-
vuled in the first article of this treatv, tho jtossessorv
ri.o-hts of the Hudson's Bay Company, and of all ]}ritish
vsul)jects who may he already in the'occupation of land,
for other proj)erty, lawfully acciuired^ within the said ter-
iritory, shall he respected.
I And on the following clause of the Treatv of Julv 1st
418G3, namely: ' ^ . . »
I Art. I. And whereas it is desirahle that all questions
hetween the Tnited States authorities on the one hand, and
the Hudson's BayandPugefs Sound An-ricultural Compa-
nieson the other, with respect to the j.cissessorv rights and
Iclaimsof those companies, and of any other British suh-
jects in Oregon and Washington territory, should he
sc>ttled hy the transfer of those rio-hts and claims to the
Goyernment of the Tnited States, for an adeciuatc money
consideration.
In the exhihition of its pretended rights, the Hud.son's
Bay Company, hy its memorial, claims compeiisati',)n on
account of various trading posts or stations which it i»ro-
fesses to have occupied and improved in the territory of
the Tnited States, now ]iolitically organized as the State
of Oregon, and the Territory of Washington.
\%
(■in,
Mil'
mmaammammamsm
• i.
i .,
11. • .
( i.
It also claiins eonii)en8iitio)i on account of pretended
rights of trade and of navigation independent of, or dis-
tinct from, the occupation of land.
And on account of tlicse various branches of pretended
right, the Company, in its original memorial, claims com-
pensation to the amount of three million eight hundred
and twenty-two thousand and thirty-six dollars ($3,822,-
036); and in a motion to amend, claims the further sum
of four hundred and fifty-nine thousand nine hundred
dollars ($450,000): making hi all, the total claim of four
million two hundred and eighty-one tliousand nine hun-
dred and thirty-six dollars ($4,281,936.)
Tiie duty to be performed by the Commissioners in the
premises is defined in the second article of the treaty un-
der which they act, requiring that they shall "make and
subscribe (as they have in fact done) a solemn declaration
that they will impartially and carefully examine and de-
cide, to the best of their Judgment, and according to jus-
tice and equity, without fear, favor, or affection to tlieir
own country, all the matters referred to them for their
decision."
We propose and expect to show, to the satisfaction of
the Commissioners, that tliese claiihs of the Hudson's
Bay Company are for the most part utterly destitute of
any truth or Justice in fact or in law: that, in so far as
there may be right in any part whatsoever of such claims,
the same are extravagantly and monstrously exaggerated
])y the claimants, to such exorbitant degree as to sound
in fraud, and to dishonor and discredit tlie entire cause of
the Company.
The discussion of the subject involves, in the first place,
sundry general consideratit)ns; and in the second place,
examination, in detail, of the various heads or branches
of claim, as subdivided in the memorial of the Company.
fl!!iii;;r
numrn
• »
>f pretonded
lit of, or dis-
)f pretended
claims com-
glit hundred
iars ($3,822,.
further sum
inc liundred
hiim of four
ud nine huu-
ionersin the
lie treaty un-
l "make and
1 dechiration
nine and de-
rdiui;' to jus-
;tion to tlieir
lem for their
itisfaction of
lie Hudson's
' destitute of
:, in so far as
' such chiims,
exago'erated
as to sound
itire cause of
iielirst place,
;econd place,
1 or brandies
le Company.
(A.) — GkNEUAL CONSIDEUATIOXS.
The Treaty of June 15th, 184G, between the United
States and Great Britain, provides, —
"That in the future appropriation of the territory south
of the 4'.)th parallel of north latitude, * * tlie posses-
ory rights of the Hudson's Bay Company, and of all
British subjects who might be already in the occu]iation
of land or other proi)erty lawfully acquired within the
said territory, should be respected."
I. The first observation which suggests itself is, that
the obligation assumed by the United States, in the clause
of the treaty quoted, is to commence in future, upon the
"appropriation of the Territory." That is to say, the
United States undertook to respect the jtosscssory rights
of the Hudson's Bay Company upon their "future ap-
propriation" of the territory.
Appropriation of the territory would consist in the
United States doing one or both of two things; (1) Tak-
ing for its own use such portions of land as it would need
for public purposes as military reservations, light houses,
&c; (2) Establishing its land system over the territory.
Whenever, in thus making appropriation of the terri-
tory, the portion of land, sought to be afjpropriated, in any
degree infringed upon the possessory rights of the Com-
pany, the United States were bound to respect those
rights. If the United States had never made appropria-
tion of the territory, the special obligation assumed by
them in the treaty would never have occurred, and the
Company would have been left lor the protection of its
rights, whatever they might be, to the general principles
of public or municiital law, as the same might be appli-
cable to the subject.
In taking possession of land, to which the Company had
possessory rights, for public uses, the ignited States would
only be l)ound to respect the ]>ossessory rights of the Com-
l)any to the same extent, as in case of similar rights of
American citi/.ens. Aiul tliis point is expressly regulated
nnnni
:i|:f, ^
^m$
[|i{ii:i
' : I'.i •' i,."
J ! :' 'I
Hi
.h \i
4
l)y tliu Coiistitiitioii, wliit.-h provides that priviito jtropcrty
shall not hv taken tor puhlic uses oxcc[tt on jnst compen-
sation. Whenever, therefore, the United States took pos-
session of hmdin \\hi(,-h tlie Con)})any claimed possessory
rights, the C()m[»any would have no other claim against the
United States than for just comi)ensation. Such just com-
pensation is very properly detined by the Court of Claims
of the United States as the value of the pro[)erty taken.
See .Tohnson vs. the United States, 2 Nott <fc llun-
Iluntington, p. 891.
II. The next question is, What is the meaning of the
term "possessory rights," as used in the treaty?
The distinction between possessory- and i)roprietary
riii'hts has been the subject of discussion in several recent
decisions of the Supreme Court of the United States.
See Dellaro vs. V. S., o Wallace, jt. oOO.
Iliguera vs. U. S., Ibid., p. 820.
Grisar vs. McDowell, G Wallace, GQo.
The distinction requires examination in the })resent
case, and admits of being regarded under divers aspects.
1. The term "possessory rights'' means such rights as
grow out of the possession of j)roperty, real or personal.
"Possessory rights" are precisely the same thing as
"rights of posession.'" "Possessory rights" and the
"right of possessioif" are convertible terms: they are
such rights as grow out of the possession of property.
To possess property it must actually exist: possession
necessarily ini[)lies something ca]»able of being possessed.
Nothing can be possessed but that which has actual
physical substance. One is in possession of a house or a
field, or a book, because such things are capable of posses
sion. But one is not in })Ossession of rights in action, as
money due on bond, or other contract, which are choses in
action.
Tiius, in the case of a bond or note, the owner has pos-
si'ssory right> in the paper or note, with the writing o!i it.
mmmmm
nnnnRnin
lite property
l^st c'OMipeu-
tcs took pos-
1 possessory
I iigainstthe
eh just coni-
rt of ChiiiDs
)erty taken,
fott (k IIiui-
uiiiig of the
proprietary
veral recent
(1 States.
the j)resent
'ers aspects,
ich riii-htsas
or personal,
le tiling as
>" and the
s: they are
3f property.
: possession
g possessed,
has actual
I house or a
)le of [tosses
in action, as
ire choscs in
ner has pos-
•liting on it,
and may maintain trover for the same; but he has no pos-
sessory right to the sum due on the Ijond or note. In re-
ference to that, he only has a right of action. A familiar
illustration of the distinction between possession and a
right of actior> is furnished by the case of a husband, who
accjuires title to his wife's choscs in action, when he re-
I duces them to possession. As husband, he luis a right to
!•, collect Ills wife's choses in action : if he does so collect
them, tlicy become liis property. Here, first, lie has only
a right to collect; second, a perfect title by actual pos^-
session.
J Possessory rights can arise oidy from i.ossession. Pos-
' session can exist but in reference to that which has phys-
ical being. The possessory rights of the Comj.any are,
therefore, such rights as arise from their possession of
land or pcrsoual jtroperty in the ceded territory.
As we understand the memorial, there is no allegation
that the "possessory riglits" of the Company in any [.er-
sonal proi.erty luive been violated l)y the United States.
Such being the case, we think it unnecessary to say any
thiug further in reference to the possessory rights of the
Company in personal })roperty.
We propose to confine ourselves entirely to the (piestion
of the "possessory rights" of the Company to land in the
territory.
IIJ. AVhat are the "possessory rights " of the Company
to land?
1. It is clear that the Company have no fee simple
title to land, because no such title can be ac(piired to lands,
under the laws of England or the United States, except
by grant from the sovereign authority. This principle of
law is so fundamental in the jurisprudence of Great Bri-
tain and the United States, that it is thought unuecessary
to nudve an extended argument on the point. It is deemed
sufficient to refer to the following authority:
Sf
iW
(i
' f
(
■?
I' I'i
)■;
-i :.■.
■ ,i''l
"^t is a fiinflameiital principle in the English law, that
the king is the law paramount of all the land in the
kingdom, and the true and only source of title. In this
country we have adopted the same principal and applied
it to our republican governments, and it is a settled and
fundamental doctrine with us, that all individual title to
land within the United States is derived from the grant
of our own local governments, or from that of the United
States, or from the Crown or royiJ chartered governments
established here prior to the revolution."
(3 Kent's Commentaries, sec. 37, pp. 457, 458.)
There is no pretence, therefore, whatever, for claiming
that the Company is entitled to a fee simple title to land.
Indeed the treaty etfectually dispones of this (piestion:
for itspeaksonly of "possessory rights ' in the Company,
necessarily implying that the fee simple title was not in
the Company.
2. Assuming then, that the company have no fee simple
title to land in the territory, an estate in law, analogous
to that of the company in 184G, is what the common law
denominates an "estate at will."
An estate at will is defined to be, "where on 3 man
lets laud to another to hold at the will of the lessor." —
(3 Kent's Com., sec. iii., p. 114.) A simple permission
to occupy creates a tenancy at will. — (Doe vs. Wood, 14
Meeson & Welsby, 682.)
The possessory rights of the tenant may be defined aa
follows:
(3 Kent's Com., sec. iii., p. 114.)
a. Tenant has a right to the possession of the land until
the crop is gathered.
h. lie is entitled to the use and fruit of the land.
c. He is entitled to reasonable estovers.
d. lie can maintain trespass tigainst wrong doers, who
invade his possession.
By the English statute of frauds, generally adopted in
the United States, "all estates or uncertain interests in
land, made by parol, and not in writing, have the force
and otroot of estates at will onlv."
lish law, tliat
land in the
itle. In this
I and applied
a settled and
•idual title to
om the grant
)f the United
governments
H, 458.)
, for claiming
3 title to land.
:his ([uestion:
he Company,
de was not in
no fee simple
iw, analogous
! common law
lere on 3 man
the lessor." —
le permission
vs. "Wood, 14
be defined as
the land until
the land.
ng doers, who
illy adoptee! in
in interests in
have the forco
Under the English and American law, all possession ot
land, with the consent of the owner, without a written
agreement, is an estate at will.
A tenant at will is not entitled to be paid for improve-
ments.
3. A\"e might also consider the quCvStion of "possessory
rights" as illustrated by the relation of the Indians in
America to the European sovereignties established here,
I the law being the same in that respect both in Great
I Britain and the United States.
See Wilkes vs. U. S., 9 Peters, 711.
Worcester vs. Georgia, 6 Peters, 615.
Lattimer's Lessee vs. Potet, 14 Peters, 4.
U. S. vs. Fernandez, 10 Peters, 303.
This point will be more particularly discussed hereafter,
in examining the value of the claims of the Company.
4. Another pertinent analogy is that of the pre-emption
laws of the United States.
This also will be further considered in discussinir the
Svalue of the Company's claim.
5. But we have no occasion to rest on mere analogy in
the present case.
It is the ordinary case of occupation of land by a
licensee at will.
The Company were rightfully in this territory only by
virtue of the license of trade.
This is obvious by reference to the terms of their
original charter, which restricts their operations to the
country around Baffin's Bay.
Further, it appears by their acceptance of the license
of trade, which is an admission on their part that with-
out such license they would have had no authority to op-
erate in this territory.
And it appears, further still, by their yielding to the
authority of the British Crown, in revoking tlieir license
in British Columbia, thus giving a practical construction
to the jwwers conferri'd upon them ;inder tlieir origitud
<'h:irt('r.
} l1^
mmmmmmm
.VI
And horo we nuiy rcnjark, tliiit wo do not think it
necessary to raise the (questions, whieli liave l)ccn raised
in (ireat Britain, as to whether the Company, under tlieir
original cliarter, have any other tlian proprietary riglits
as owners of tlie land. As appears from Mr. Dodd's
address, hereinafter* referred to, p. 30, it appears that
grave douhts exist in tlie best legal minds of Great
Britain, Avhether the original charter of the Company
legitimately conveys to the Company anytliing more
than the ownership of the land eml)raced in it. But we
think it unnecessary to pursue that inquiry in this rela-
tion and [)lace.
It is enougli for our purpose to show that the Com-
pany were acting .n this territory only by virtue of the
license.
Assuming that this is a question of law established in
the case, then we propose to see wluit consequences fol-
low froi;; it.
{a) The license is an authority to tlie Company to
carry on exclusive trade with the Indians. — Company's
Evidence, p. 317. It is this, simpl\ this, and no more.
The first question which arises in this connection is,
what, if any, right, interest, privilege, or title to land,
this license conveys. Xo mention is made of land. The
territory was in such a condition, being claimed both by
the United States and Great Britain, that it would have
been improper in Great Jiritain to nuike any alienation
of land in it. And it is on general princi}»le, resulting
from the fact of the United States clainiino; the territorv,
and special!}' because, by the treaty of Joint occupancy
between Great Britain and the United States, neither
jnirty was to do any thing to the prejudice of the other
party in reference to the territory.
And in this connection it is proper to note that the
treaty of 1846, by establishing the 49th parallel as the
boundary line, admitted, as matter of law, that the claim
of tlie Tnited States was well ibundcd up to this line.
jomm
wmmmmmmmm
JM^
!)
not think it
l)ccn niised
^, iindGr tlieir
ietary riijlits
Mr. Dodd's
appears that
ds of Great
he CoTiijiaiiy
ythiiig' more
I it. But we
: in this rela-
at tlio Corn-
virtue of the
'stablislied in
:}quGncos i'ol-
Conipany to
— Company's
d no more.
onnection is,
title to land,
»f land. The
nied both bv
would liave
ly alienation
})le, resultino;
the territory,
it occupancy
tates, 11 either
of the other
note that the
arallel as the
hat tlie claim
I to this line.
The United States, it must be remembered, did not de-
rive title to this territory from the treaty of IS-IO. The
legal effect of the treaty was only that it containe<l the
acknowledgment by Great Britain of the pre-existing title
of the United States. In legal contemplation the terri-
tory was the territory of the United States, thence hith-
erto, at and previous to the issuing of the license of trade
to the Company.
As a question of law, then, at the time of the conces-
sion of the license, a grant of land in the territory from
the British Crown would have been without legal author-
.. ity, as attempting to grant land lielonging to the United
States and not to Great Britain.
In point of fact, then, and in point of law, the license
of trade did not grant any permanent estate in the lands
of tlie territory.
The question now comes up, what interest in the land
did the license ijrant?
In determining this question, the status of tV ; territory
must be kept in mind. It was claimed by botli Great
Britain and the United States, the title of the United
States being subsequently admitted by Great Britain.
By the terms of the treaty of Joint occupancy the terri-
tory was open to the occupancy of the subjects of Ijoth
countries for the time beinir.
The utmost which could properly be claimed on behalf
of the Company in this regard is, that the license author-
ized the provisional occupancy of so much of the terri-
tory used, ';i such manner as was necessary and proper
to effectuate the power of exclusive trade with the
Indians, conceded by the license. The Company were
authorize by the license to carry on exclusive trade with
the Indians, and as incident to this power, to use land
in the territory in such manner, and to such extent, as
might be necessary to carry on the business of exclusive
trade with the Indians,
o
nnmi
irfir
1(1
i||i^.i^;
i I
Tliis would, tor iiiHtaiioo, nccoKsarily itni»ly a riglit on
the part of the Company to uso C'ortain points in the ter-
ritory for posts; also to open roads, kc. The privilege of
using such pasturage as might be necessary for the pur-
poses of the Company would also seem to follow. To
this might be added the use of so much agricultural land
as would be necessary for the purposes of the Company
as an Indian trading association. And also the use of the
necessary timber. h\ short, it might be possible to claim
for tlie Company all such use of the land and water and
timber of the territory as might be necessary for the pur-
poses of the Company, keeiiing in view that the only le-
gitimate business of the Company was trading with the
Indians.
The Company could use kind in tlie territory, so far as
was necessary for them in conducting their operations as
an Indian trading company. The authority of the Com-
pany to use the laiul in the territory was limited and re-
stricted within such a circk^ as was necessary for them to
act as au Indian trading association. Within this circle
their use of the land might be rightful and proper: out-
side of this circle it was without authority.
For instance, they had no authority to engage in agri-
culture, or pasturage, or milling, for the purposes of
carrying on general trade in the territory or with the
view of conducting a foreign trade.
All use of the land beyond what was necessary to en-
able them to carrv on the business of fur traders was out-
side ot their powers. The quantum of their rights in the
land of the territory is to be determined by reference to
the Indian trade.
We consider these general principles to be the proper
measure of the rights of the Com^tany to use land in the
territory.
To make a practical application of them, we submit
that the Company only had a right to occupancy of
lands of the territorv. There was no nocossitv for them
't>i'; ■'ii;
11
y n rig] it on
:ri ill the ter-
) privilege of
for the pnr-
follow. To
'ultunil land
le Company
lie use of the
ible to claim
(1 water and
for the pur-
; the only le-
ng with the
>ry, so far as
)perations as
of the Coni-
[litcd and re-
f for them to
in this circle
proper: out-
gage in agri-
purposes of
or with the
lossarv to en-
ders was out-
rights in the
reference to
e the proper
io land in the
1, we submit
)ccupancy of
■^itv for them
to have any other title than occupancy in the then unci-
vilized condition of the country. Occui>ancy was all
that was re(piisite as the territory was then situated.
This occupancy was an incident of their license to trade
with the Indians. This license to trade was merelv nro-
visional, subject to revocation at any moment by the
British Crown.
As the license to trade was the principal thing, and
occupancy of the land a mere incident arising from such
license, it is manifest the right of occupancy could have
no more permanent existence than the license itself.
The license to trade being the principal right, and occu-
l)ancy a mere consc([Ucncc Howing from such principal
right, the right of occupancy must jjerish with the license.
This we consider so plain as not to require further ar-
gument.
The license might expire in three ways:
1. By the cessation of the interest of the licensee, or,
2. By revocation.
3. By expiration of the title of the licensor.
It is laid down as a familiar principle of law that "the
death of either party will of itself revoke it," (a license.)
—(Washburn on Real Property, vol. 1, p. 414.) There
is no doubt of this, as a question of law in the case of an
individual.
So, by parity of reason, where a government, as in this
case, grants a license, the license expires with the power
of this government over the subject-matter. Where the
individual licensee dies, the license expires ; so where the
power of the government expires, the license ends.
The British Crown had authority to grant the license
at the time it did, but after the treaty of 1846 its power
in the matter was gone, and the license ended.
If we are correct in this view of the case, the Company
had no right, after the treaty, to act under the license, the
license being thereby made void and of no effect, and
further occupancy of land by them, except for the purpose
of winding up their ]»usiness, was ummthorizcd.
/
) •
V2
ft.
'■1 'r;!:'
m
vii
'#11,,
IJiit iit iUiy rat(.', tlie license by its oxpross terms was
revocable, and in point of tact it was revoked.
And hero it is wortliy of observation tliat tbe licensi;
itself expressly provided tliat it should not be operative
within the territory of the United States. — (Coi. pany's
Evidence, p. i}18.) This is important • . sliowing tliat it
never was tlie intention of the Britis'' Jovernment to au-
thorize the Comi)any to operate .thin the territory of
the United States.
Siicli liavinii been the orig"..ial purpose of the Crown
in the very act of grantini:: the license, there was jiecu-
liar propriety in the revocation thereof alter the treaty
of 1846.
This furnishes us with additional inducement to con-
clude that the revocation of the license ended the author-
ity of the Company in the territory. It was only the car-
rying out by the British Government of its primary policy.
The same considerations of public, i)olicy which induced
the British Government to i)rovide expressly, in the first
intance, that the Company should not operate within the
territorv of the United States, would indues the Govern-
ment to revoke the license after the territorv was ascer-
tained to be within the United States.
Great regard to the polic}- manifested by the British
Go', crnment in granting the license compels us to give
the fuliost possible eflect to its revocation of the license.
Alter the revocation of the license, certainly if not at
the date of the treaty of 1840, the Company was fiincia
officio in the territory as fur trader, and with its extinction
as fur trader ended all riglit to occupancy of land in the
territory.
A few observations in addition on the subject of the
law of licenses, and we will pass from this branch of the
case.
A license is defined as follows :
" A license is an authority to do a particular act, or
series of acts, upon another's land, without possessing any
estate therein."
th
IS
, terms was
1.
the liocMis(!
0 operntivii
(Coi, pany'H
\\\\\<^ tliJit it
mciit to aii-
territorv of
'the Crown
) was jiecii-
• the treaty
V
lent to con-
Ithe aiithor-
Diily the ear-
Ill ary policy,
lich induced
, in the first
e within tlic
the Govern-
y was ascer-
the British
; us to give
the license,
nly if not at
y wasfuncta
ts extinction
land in the
diject of the
ranch of the
cular act, or
)ssessinsi' anv
Waslilmrn on Real J^roperty, vol. 1, p. 412,
See further on same point :
Cook V. Stearns, 11 Mass., fi'A^l.
Tayler v. Waters, 7 Taunt., :}74.
Mum ford v. AVHiitney, 15 Wend., 3H0.
Wolfe V. Frost, 4 Sandf. Ch., :'2.
l*rince v. Case, 2 Amer. i^eadinu' Cases, 728.
The essential and descriptive characteristic of a license,
(!onsidored in reference to land, is that the licensee ac-
(piircs no estate therein. He receives authority to do
some act, or acts, in connection with the land of another,
hut acquires no estate. Under the operation of this piin-
cii)le, the Company, as licensee, ac(piircd no estate in land.
Hence, therefore, it is further laid down that "a li-
cense nuiy he created hy parol, as it passes no interest in
the land."
I AVashhurn on Keal Projierty, vol. 1, p. 412.
It is also laid down that a license may be revoked. —
{lb., p. 413.)
Further, that a license is strictly construed. — (//>., p.
414.)
I Again:
;| "A license is so much a matter of personal trust and
confidence that it does not extend to any one but the
licensee." — [lb., p. 414.)
The Company could not have aliened the privilege of
trade they enjoyed under the license. Neither, it would
seem, therefore, could the}' alien the occupancy of land
they enjoyed as an incident to the license.
^ In one class of cases the license has been to build a
house on licensee's land, and in some cases the revocation
has been before the building was completed, in others
afterwards, and in both the licensee was obliijed to re-
move it without any right to claim compensation..
Washburn on Real Property, vol. 1, p. 415.
Jamieson v. Milleman, 3 Duer, 255.
Prince v. Case, 10 Conn., 878.
I \m\w-
14
t If
.1 >
t
'ii.
Jackson v. Babcock, 4 Johns., 418.
Batcheldor v. Wakefield, 8 Cush., 252.
Harris v. Gillingham, 6 N. H., 9.
Benedict v. Benedict, 5 Day, 464.
From these several principles of la'.v the slight and pre-
carious interest of the licensee appears.
If the license in this case had given the Company
express authority to use and occupy land in the territory,
it is submitted, that upon the termination of the interest
of the licensor, or upon the revocation of the license, the
privilege to use and occupy land would, according to the
principles of law applicable to the case, hereinbefore cited,
be at an end.
If this be true where the license expressly conferred
the authority to use and occupy land, much more would
this be the case, where the right to use and occupy the
land was not expressly conferred, but was a mere incident
as in this case, flowing from the principle right granted
in the license, that of the Indian trade.
IV. We infer that the "possessory rights" of the Com-
pany in lands, pushed to the utmost extent of possible
legal right, are only as follows:
a. liight to the possession of land occupied by them
at time of the treaty.
b. Right to the use and fruit of the land occupied by
them at time of the treaty, in the same manner they had
been accustomed to use it.
c. To maintain possessory action against trespassers.
d. The duration of these rights to be comn.iensuratt'
with the license of trade under which they were fuuc-
I'oning as a corporation in the territory.
In short, vl consider that the full measu" of justice is
awarded to the Company, in considering them as tenants.
under the United States, of the lands in their possession
at the time of the treaty, until the expiration of their li-
cense to trade.
o-
I '
15
slight and pre-
the Company
n tlie territory,
of the interest
the license, the
jcording to the
iinbefore cited,
essly conferred
ch more would
ind occupy the
mere incident
3 right granted
ts" of the Com-
ent of possible
uipied by them
lid occupied by
anner they had
nst trespassers.
commensuratt'
bey wei-e func-
I.:- of justice is
hem as tenants,
:heir possession
tion of their li-
Acconling to this view, the Company would not be
entitled to payment for the improvemeMts left upon the
hmd at the expiration of their possession.
3
\. But it may be thought that this is too technical
a consideration of the case, and we will therefore con-
eider it in a more popular light.
We maintain then, that, by the treaty, the Company
were, at most, entitled to possess only^ the land occupied
by them at the time of the treaty as they were then doing.
In other words, they had the right, by the treaty, to oc-
cupy and use their posts, and farms, and pasturage, and
use necessary timber therefor, as they had been accus-
tomed to do; and that this right was to continue until
their license to trade expired, and no longer.
Here two questions occur —
1. Have we rightly defined the extent or quality of the
Company's "possessory rights?"
2. Have we properly limited the duration of these
rights, to the continuation of their license to trade?
In reierence to the first question, we do not well see
how any larger detinitiou can be given to the term "pos-
sessory rights," in reference to land, than we have given.
"We conceive that we have conceded every right apper-
taining to the possession of land, where that possession
is 'ot under a fee simple title.
i I I reference to the period we have assigned for the
duration of the Company's rights of possession, we con-
sider that tiiere can be no substantial ground for diU'er-
«nce of opinion on this point.
The Company were o[ierating in the territory, south of
the 49th parallel, not under their general charter, but
tmdei' a special license from the British Crown.
This license was Umite«l to twenty-one years, and sub-
ject to repeal at the pleasure of the Crown. In point of
fact, this license was actually rescinded by the Crown in
\^K)\K — (Miscelhineous Evidence for r. ^States, p. 388.)
> M
) i'fFilfr
UMiillliHi
10
'\\'VM
■ If i'
mt\
;< I' :'•
|,i I
1
i li
I'. I'- lit
The Company liad no right whatever to be in the ter-
ritory, south of the 49tli parallel, excei)t by virtue of its
license to trade.
Tlie Company was a corporation and it is a familiar
principle of law, that a corporation can act only within
the limits of the authority granted to it. A banking cor-
poration can exercise no busifiess but that of banking:
an insurance corporation that of insurance, and so on.
The same principle apjilies as to the territory within
which a corporation may exercise its functions.
The original charter of the Company only authorized its
operations in the country around Bafiin's Bay, and it was
only by virtue of the license of tnji'j, above referred to,
that the Company carried on its );' h:>! in this territory.
But for this license of trade, its (/pcrations in this terri-
tory would have been ultra vires, and illegal. Without this
license of trade, its operations in this territory would
have been as illegal as operations of the same nature by
it would have been in India. As its riglit to be in this
territory entirely depended on its license of trade, when
that license expired, it was without authority to continue.
The British Crown did revoke, in 1858, this license to
trade, so far as it extended to British Columbia, and it is
a historical fact that the Companv immediatelv vielded to
this action of the British Government.
If, therefore, the expiration of the lie >ii ■ - to trade in
British Columbia operated to extinguish the ' 'ompaii}' in
that locality, it is difficult to see how a difteren; <. Jlect can
be attributed to this action of the British Government, so
far as the rights of the Company are coricerned, in the
United States. To suppose otherwise, would be to im-
agine tlie extrjiordinary spectacle of a corporation being
held to be entitled to greater privileges '",. a foreign coun-
try than in the country of its origin. • 'dinarily, a cor-
poration is a thing of local existence, limit"d to the coun-
try of its origin, and when it is recognized beyond the
countrv of its orii> i;, it is oocause of the comitv of nations.
Mi.
r
be in the ter-
virtiie of its
is a familiar
t only within
hankino- cor-
of banking:
;, and so on.
ritory within
3n8.
authorized its
ly, and it was
e referred to,
this territory.
! in this terri-
Withont this
'ritory would
me nature by
to he in this
f trade, when
y to continue,
this license to
iibia, and it is
telv yielded to
so to trade in
le ( 'ompany in
trejii '. '.oct can
ovjrnment, so
cerncd, in the
»uld be to ini-
poration being
I foreign conn-
linarily, a cor-
-! to the conn-
ed beyond the
nitv of nation?.
But tliis comity has never boon construed, so far ns we
are aware, to authorize n corjioration to he (Mititlcd to
ffroater ri'jrhts in a foroiiiii country than in the (;ountrv of
its ori2:in.
We submit, therefore, that if nnythin<i, can be clear, as
a Icii'al [troposition, it is, that a corporation, extinguished
by the action of its own government, must l)e treated as so
extini::uished in foreiirn countries.
A contrarv doctrine, in this case, wouhi be followed bv
the most strange result. The spectacle would be pre-
sented of a foreign coi'i)ora:ion, dead at home, but alive
abroad.
Again, if the Company was not extiiifrnished by the
repeal of its license oltrade within the United States, what
limits can be set to its existence? It must be dead or per-
petual. Surely no one will be found so hardy as to insist
that it has a right to perpetual existence in the United
States. If it is not [jcrpetual, then, the only limit to it,
is the cessation of its existence under the Enjxlish law.
According to that law, it expired in British Columbia
in 1S,'>!I, by the withdrawal of the license under whicb it
had its being within the United States. It must therefore
be considered ns ending within the United States at the
same time.
As confirmatory of this view of the case, we call atten-
tion to the elaborate address of Mr. .Tas. Dodds, a stock-
holder in the Company.
^ "This (1840) was the palmy time of the Hudson's Bay
Comi)any. Its possessions and powers were then at their
zenith. They held kui)ert's Land by the royal charter,
Avhich was perpetual. They held the whole Indian ter-
ritory to the Paciiic by an exclusive license, which was
termiiuil)le in Ls.V.t. They held A'ancouver's island by a
similar license, also terminable in 1^'){). Three diflerent
possessions bv three ditterent titles."— (Mr. Jas. Dodds'
Address, p. 2-3.)
8
.(WTmr^
BHsnsnsBi
'(''■I'l'l: '
IH
I
M:
VI. if wo aro correct in our (lolinition of the possesi?-
ory rights of the Coiiipiiiiy, and the duration of those
rights, tlio question may now properly be considered,
wl]ether tlie United States, in pursuance of the obliga-
tions of the treaty, have "respected" those rights.
W^e are willins^ to ffivo to this clause of the treatv the
most liberal admissible interpretation. As comprehend-
ed by ni^, it imports that tlie United States shall recognize
the r >ssessory rights of the Company; that they shall not,
by any act of their own or their officers, invade those
rights; and that they shall extend proper judicial remedy
for their protection.
The liability assumed by the United States in the
treaty in regard to the possessory rights of the Company
is precisely the same in principle as the obligation as-
sumed in former treaties in regard to the titles to prop-
erty, to wit, the treaties with Great Britain, with France,
with Spain, and with Mexico. The chief difference is,
that, in the case of this particular treaty uiuler considera-
tion, the recognition is only of possessory rights, being
the sole rights the Company could have. The obliga-
tion of the United States to respect those rights is pre-
cisely the same in principle as its obligation under other
treaties to respect land titles, and its general obligation
to respect the titles of its own citizens to property gene-
rally. The United States, by undertaking to respect the
possessory rights of the Company, only assumed in rela-
tion to that company its universal obligation to respect
the rights of all persons within its jurisdiction in posses-
sion of propert3\ All that the United States, therefore,
were reijuired to do by the treaty in this case, was to re-
frain from violation, by itself or its othcers, of the possess-
ory rights of the Company, and to permit the Company
to enjoy the judicial remedies for individual trespasser^
customary in the country.
We make these observations, because an idea seems to
prevnil. in certnin qunrters. thfit the United States w<m'p
m
■m
■-•5
- --^
■ ■■■*
the possess-
ion of tliose
considered,
' the obliga-
iglits.
le treaty tlie
3omprehend-
all recognize
ley shall not,
nvade tliose
iicial remedy
tates in the
he Company
bligation as-
tles to prop-
with France,
ilitterence is,
ler considera-
rights, being
The obliga-
■ights is pre-
i nnder other
al obligation
'operty gcne-
to respect the
imed in rcla-
m to respect
on in possei^-
tes, therefore,
se, was to re-
^f tlie possess-
the Company
Lial trespasse:^
idea seems to
(1 Stntes were
10
bound to some special measure of i>rotoction of the Com-
pany's rights, by some novel legislation, or by becoming,
in some sense, tlie peculiar guardians of the Company.
We insist, on the contrary, that the rnited States were
not called to an}' active or special legislation in the prem-
ises, but discharged their whole duty when they refrained
from themselyes infringing on the rights of the Company
and permitted the Company to enjoy the benetit of their
Judicial system.
To illustrate our idea: Mr. Astor at one time was in
possession of the trading post known as Astoria or Fort
George. If this ])osscssion of his had continued at the
time of the treaty, the United States would, on general
l)rincii>les, have been bound to respect his possessory
rights. This obligation would only imply that the United
States were not to violate those rights themselves, but
would not infer any liability on the part of the United
States for the action of trespassers. These would be left
to be dealt with in the ordinary course of legal proceed-
ings.
So far, therefore, as the Com[>any complain of unau-
thorized trespassers upon their posessions, the Ignited
States are in no sense responsible therefor, any more
than for trespasses to ti'iy other complainants.
A'll. We ask now what evidence would prove that the
United States invaded the possessory rights of the Com-
pany? We imagine that this evidence would consist of
two distinct states of alleged fact:
, First, where the United States took possession of some
portion of land claimed by the Company ; or, secondly,
permitted donation or pre-emption claims to be located
on land claimed by the Company.
1. As regards the first point, we conceive that the in-
fringement by the United States in taking jiossession of
land for their own use is as little as could well be imair-
ined un<ler the s))C('ial circumstances of the case.
ly^m
20
i'ilr
I'l
i!'
> i ,
1; !
* 1
.J
•'I'll ^'il
Tlic L'nitc'd States ostiiblisliod a inilitiiry post at Van-
('C)iu or. But this was done with the consent and appro-
l»ation ot'the C!!onipany, and was eminently advantageous
to them, as protection a^'ainst settlers, and as furnishing a
mart for the f>ale of their goods at tliat jx/int. The great
\ ' valuation the Company ni»,. i)ut ui)on \"ancouver is al-
\ most entirelv because of the estahlishment of the United
I States post there, which tended more than anything else
to make it a commercial point. So far as the establish-
ment of the United States post at Vancouver is concerned,
then, it was not an injury, but a benefit to t.iC Company.
2. Secondiv, asto the next form of alleij-ed infringement
of the possessory rights of the Company, consisting in the
United States permitting persons, under the (lonation or
other laws, to locate on the lands claimed by the Com-
[tany, we submit several considerations.
It is to be noted that the donation huv expressly ex-
cepted from location lands claimed by the Company.
This is an important fact and shows the great anxiety of
the United States to have the "possessory rights" of the
Com[»any respected. It was .special legislation for the
peculiar benefit of the Company. The United States
were not content to be passive in the matter of protect-
in<»: the riij-hts of the Comr)anv, but tliey took the most
efHcient and active step by positive legislation to protect
the Comiiany in its rights. Under this law, locations
made on land claimed by the Company were null ai '
void and of no effect.
The Ignited States should not be held responsible for
the lawless acts of its officers. The Uiuted States having
exce[»ted from the donation laws lands claimed by the
^ Company, all such locations were void, and tlie Company,
by taking pro}>er ste[is, had a legal remedy within their
reach to prevent these unlawful locations. It was the
duty of the Com[>any to avail itself of the legal remedies
provided, and if it failed to do so it was in default and
has no right t(t look to the United States for indemnity
fir los;-.cs incuri'cd b\- its ow n hu'lierr.
21
post tit Van-
t and appro-
idvantagcous
I fiirnisliiiiga
:. The great
couver is al-
)!' the United
mything else
the establish-
is concerned,
.iC Company,
infringement
sisting in the
> donation or
by the Com-
expressly ex-
le Company.
;at anxiety of
riglits" of the
ation for the
.'nited States
er of protoct-
jok the most
ion to protect
hiw, locations
vevQ null ai '
^sponsible for
States having
aimed by the
the Company,
- Avithin theii-
It was the
eijal remedies
n default ami
for indemnitv
When we consider the indefinite character of the Com-
pany's land claims, so uncertain that its chief agents, as in
the case of Mr. McTavish, wore unable to define the
boundaries, we should be prepared to look with great
leniency on the acts of subordinate officers of the United
Btates who permitted locations to which the Compaii}-
take exceptions.
If the ['nited States are held responsible for the nc-
tioPis of its officers in ]»ermittiiig locations on lands
claimed by the Company, then we submit, that an im-
portant inrjuiry is, whether those lands thus made subject
to lo3ation were in the actual occupation of the Company.
Tlie Companv's i-ights arose i'rom i)Osses8ion. If thev
reliufpiished possession, this o[)erated as an abandonment
of their right, and the land so abandoned became prop-
tu-lj' subject to location. AVe maintain then, to establish
any claim in this regard against the Government, they
must show that they were in actual occupany of the land
at the time of the location complained of.
Take the case of Vancouver. The Company claimed
possessory rights in nearly 200,000 acres of laud. They
never had over about 2,000 acres in cultivation, the resi-
due they pi'ofess to have used as pasture. After tlie treaty
they gradually reduced their farming operations at V^an-
couver, and finally cultivated but a fragment of the land
originally in cultivation, and pastured to a small extent.
This oi)erated as an abandonment and relinquishment of
their possessory rights, and the lands thus abandoned and
relinquished by them became subject to location.
The same state of things existed at other points than
Vancouver, where the Company claimed possessory rights,
and the same deduction of law should bo made in refer-
ence to those other points.
It may be appropriate to notice, in this connection,
that the Company seems to assert that the United States
were bound to enact some special legislation, or to do
some especial acts to cause the possessorv riirhts of the
i \m\T
.10
ilfi
!!!!;;;;; m
Com[)uny to be respected, other than wliat was done.
But it is Hubriiitted that the United States fully performed
their duty in tliis reo;}ird.
In the tirst [dace, the provision in the treaty, that the
" possessory riu'hts" of the Company should be respected,
was the authoritative declaration of a treaty, the "supreme
law'' upon the subject. Whenever a treaty disposes of
the subject-matter in such a manner as that the courts
can take notice thereof, it executes itself, without further
lei::islation. In this case, the treaty says, the "possessory
rights" of the Coni])any "shall l)e respected." This, it
is submitted, is the law of the case. If the treaty had
said, "Congress shsdl legislate so as to cause the 'posses-
sory rights' of the Company to be respected," then the
courts could not enforce the treaty in tliis regard, without
legislation. But, we contend, the treaty is so framed as
to execute itself.
To illustrate: su[»pose that Congress had passed a law,
in the terms of the treaty, ordaining that the "possessory
rights" of the Company should be respected. Would not
the courts liave felt bound, judicially, to enforce this res-
pect by api)ropriate legal remedies? So, in this ease, the
treaty is legislation on the subject, and is law for the
courts, and the Company is entitled to all legal remedies
for the protection of its rights against trespassers.
When, in audition to the provisions of the treaty, we
remember that the United States, by special legislation,
excepted from the donation law lands claimed by the
Company, it is submitted that tVie United States fully
performed the obligation they had assumed to respect the
"possessory rights" of the Company.
If it be said, on the other hand, that the land officers
of the United States did grant titles, under the donation
laws, to settlers, in any land belonging to the Company,
{which we deny), — then it is submitted that, if the grants
of title thus made covered lands to which the Company
had "possessory rights," such action of the officers of
!; ii
.Ji
23
at was done,
ly performed
aty, that the
3Q respected,
he "supreme
y disposes of
at the courts
thout further
I "possessory
d." This, it
le treaty had
e the 'posses-
id," thou the
j;-ard, without
so framed as
passed a law,
3 "possessory
Wouhl not
force this res-
this ease, the
law for the
ejjal remedies
)assers.
lie treaty, we
al legishition,
limed by the
1 States fully
to respect the
; land officers
L' the donation
the Company,
t, if the grants
the Company
the offioers of
the land office was void, as heinii,' in violation of the
treaty and the donation laws, and the persons claim-
ing under such titles, as against tlie Company, were mere
trespassers, and the United States are not responsible
for such illegal acts of its officers.
The question of the lialiility of the United States for
the acts of its officers, has been very fully considered re-
cently in the Court of Claims of tlie United States, in
the case of the Floyd Acceptances. — (T. AV. Peiree vs.
The United States, 1 Nott k JIuntington, p. 270.) And
it was held by the court, that the United States are not
liable for the acts of its officers, where those acts are in
violation of law.
So far, therefore, as the Company claim that their "pos-
sessory rights" have ])een violated by the United States,
through tlie action of the officers of the land office, in
granting titles under the donation laws, it is submitted
that the assumption, that such acts have been done by
the officers of the land office, necessarily admits that such
acts were illegal, as being in violation of the supreme
law of the treaty, and the donation law of Congress.
If the land officers m-anted titles to lands to which the
Company had "possessory rights," it was an illegal acton
' their part, for which the United States were not respon-
silile. Against such illegal action the Company had the
same remedy as any holder of property in the United
States had against illegal trespassers. The United States
are bound, by the law of the land, to respect the property
rights of all persons within the United States, but it has
never been imagined the obligation rendered the United
States responsible, in damages, for the illegal action of
its officers. AVe conclude, therefore, that the United
States arc not responsible for the action of its land offi-
cers, aft'ecting the "possessory rights" of the Company,
such action being in violation of the "supreme law" of
the treatv, and the donation laws of Congress.
^es
wmmmm
tmm
'\-W
ililii;;;:ii
24
W wo !iro correct in llic jtroposit'ons suhmittcd, tlic
(luestiou of (liiniagoH is reduced witlilu very Hiiuiil propor-
tions.
VIII. As to tlie (piestion of (hinuia:es, we propose now
to submit certain considerations as detennininiji: tlic i)rin-
<;iples upon wiiicli they sliould be estimated, if it is con-
sidered that any case is made for (himages.
1. Damages are for injury to tiie "possessory rights"
of the Company, in land. No aUegation is made of
the violation of the possessory rights to personal prop-
erty. The case is tlierefore coniined to the "possessory
rights" of the Company, "in tlie occupation of hind."
"Possessory rights," in reference to land, are the same
things as "rights of possession" to land. They are, it is
believed, convevti}>le terms, and mean precisely the same
thing.
2. AVhere these possessory rights have been invaded
by the direct action of the United States, m taking pos-
session of land in the occui)ancy of the Company, as the
instance of the military reservation, established at Van-
couver, we submit, that this is not to be regarded in
the light of a trespass, but as a legitimate exercise of the
right of eminent domain, and the Company occupies no
otlicr different or better position than a citizen of the
United States, whose property is taken for public uses,
which the Constitution authorizes to be done, on the al-
lowance of "JuKt compensation."
This "just eonjpensacion" is carefully detincd in the
cases of Johnson vs. The United States, 2 Nott k Hun-
tington, p. 31)1.
Especially is this principle of compensation to be re-
garded, where, as in the instance of the nulitary reserva-
tion at Vancouver, the occupation is made by the United
States with the assent and at the re([ucst of the Company.
Furthermore, where, as in the ease of the reservation at
Vancouver, the C<Mnpafiy is largely benetited thereby, in
i
liilli!
J
'jr,
luittod, thr
luiU propor-
ti'oposo now
ii<>; tlie i)riii-
if it is con-
sory rights"
18 iiuide of
rsoiuil prop-
" possessory
)ii of land."
,re the same
liey are, it is
ely the same
)eeii invaded
1 taking pos-
ipany, as the
shed at Van-
regarded in
{creisc of the
>' oecupies no
jiti/en of the
publie uses,
le, on the al-
L'lined in the
Nott ic nun-
tion to be re-
litary reserva-
by the United
the Company,
reservation iit
od therebv, in
the great a(hlition made to its gcniTul trath', tiiis l)em'lit
to tlie C,'oin[)aiiy shouhl be eoiisich-rcd as an eleineiil to
be taken into (•oiisi(h'ratioii loi" reduction of (hiniages.
i'. As danuiges are chiiined for viohition of "jios-
sessory rights," the existenee of such rights dei»eiids upon
aetnal occiipan.'y, and wliere there is no sueli occupancy
tliere is no viohition of such rights.
4. In estinuiting soeh (hunages, referenee must be liad
to tiie precise period at wliich viohition of tlie possessory
rights took jihiee. Tlie treaty was in 1840, and for some
years after the treaty, the alleged violations of possessory
rights did not take place, or if they did so take ]>lace,
were of very limited extent. Keferenee should be had
to the commencement, ]U'ogress, and extent of such al-
leijed violations.
i). In estimatinir damaiires for such violations of possess-
orv riLchts, it is essential to determine the duration of the
possessory rights of the Com}»any. And here it is conti-
dontly submitted, that such ''[»ossessi -y rights" could not
have a longer duration than the existence of the Com-
pany's license of trade. The moment that terminated,
the Company's possessory rights to land were at an end.
It is perfectly clear, as a legal proposition, that the only
legal authority the Company had for exercising functions
as a corporation in the territory south of tlie4t>th parallel
was theUritish licenseof tra<le, itsoi-iginal charter limiting
its operations to the country around Baffin's Bay. When
that liceiise ended, the Company, so far as this territory
was concerned, ceased to have an\ rights.
That the revocation of that license of trade in 1851),
made by the British Crown, was lawful, is to be taken
for granted in these proceedings. To suppose that the
Com[)any could continue to function as such after the
revocation of its license, would, as already shown, in-
volve this singular condition of things, — that it could be
vital in the United States when it was dead in Bi-itish
(-oluml)ia.
4
mSibsuaiauuuBassmi
l'C
W
.1:1. m
'M
Y
\\Bv/m
$iV,i
Furtlicr, if its durjitioii was not liiniti'tl I»,v tlio ntvtKui-
tioii of its liceiiHO of trade, then no limit could be as-
signed to its existence in the United States, und it woidd
be perpetual. A consecjuence «o unreasonable shows
that the existence of the ('onipany in the United States as
u funetioninii^cor}»oration, needinii; tlie possession f)f land,
and hence havinn' possessory riu:hts, nnist bi> limited to its
license of trade.
0. It is submitted further, that the Company cannot
claim damages for buildings left by it in the territory.
The Company were entitled to liave tlieir possessory rights
rcspe(!ted. This would implv a right to compensation,
where those rights were violated during their existence;
but wlieii the possession of the Company ceased in hxw,
in 1850, they no longer liad any possessory rights, and
having no sucli rights, they are o"" course not entitled to
compensation for them. The p'lny cannot, in any
point of view, be regarded in a n.-we favorable light, so
far as payment for improvements made by them is con-
cerned, than licensee tenant for term of years. Such li-
censee tenant, on the termination of liis license or lease,
is not etititled to be paid for improvements.
The improvements were of no use to the United States,
and the Company had been free to sell the buildings, at
least, for their own benefit.
(B.) — Vau'e of Posts.
With these preliminary observations, we now propose
to consider the evidence of value of the posts mentioned
in the memorial, in reference to which the Company
claims damages.
We would remark in the threshold, that the evidence
of the Company, in reference to these posts, is taken as to
their fee simple value. This theory of estimation we con-
sider entirely erroneous, because, as we conceive the case,
there is no pretence of right on the part of the Company
to claim a fee simple title \u these posts. All that it
I n
m
J
'21
iild be iiH-
(1 it would
bio shows
(I States i\A
on of liiiul,
nited to its
any caimot
c territory,
ssorv rii!:hts
fipensation,
• existence ;
ised in law,
ri,ij:lits, and
; entitled to
not, in any
)le light, po
liem is con-
's. Such li-
lae or lease,
iiited States,
buildings, at
low propose
s mentioned
le Company
the evidence
s taken as to
ition we con-
eivc the case,
he Company
All that it
is entitled to is "iiosscssory rights" in these posts, iind
these '"possessory rights." wo conceive, are limited in point
of duration to the continuance of the liceiis" to trade,
or in other words, from 184<I to 1S")J>. And any valuation
of damages must, we insist, in any event, be restricted to
this period or some part of it.
Before treating the evidence in detail, wo invit<f atten-
tion to the unusual high standard of the witnesses intro-
duced on thejtartof the Tni ted States, on this general (|Uos-
tion of the value of the various posts. It is rarely that in
anv case there can be found such an arrav of witnesses,
whether we consider their high character or their intelli-
gence. A list of witnesses, among which appear such
lumies as Vlysses S. Grant and 1*. II. Shondan, is rare;
men whose names have become historical : the first, called
by a great Republic to oe its ('hief Executive.
Then, the witnesses for the United States are free from
the bias of interest. On the part of the witnesses for the
Company, it is to be remarked, a very large [lortion are
indeutitiod in interest with the Com})any. The principal
and more intelligent witnesses, as Sir dames Douglass,
Messrs. McTavish, Anderson, Charles, McDonald, Mc-
Kenlay, Tugo, and W^ark were otHcers of the Company,
and had a direct interest in swelling the recoverv. We
do not need to sav that thev knowiuglv made false state-
ments; it sutHces to say that tliey are the very parties in
interest, speaking under a bias, which almost uncon-
sciouslv would disturb their iudgnient.
Others of the witnesses had been in the Company's ser-
vice, and look at things through a more or less preju-
diced medium.
It is worthy of remark, that the principal portion of the
Company's witnCvSscs iiave had more or less close atfilia-
tion with the Con>pany, and are more or less therefore
prejudiced in favov of the Company.
We shall refer to this point more particularly hereaf-
ti-r.
' ( "(Tr-
m^^mmm
■Is
I I
I >
( 1
T 1 I'i:
1:ti;:..
TIkj valuation placed on tlie various posts by the Com-
pany's witnesses startles l)y its preposterous extravaG^anee.
Ert'ec'tual refutation of this valuation is fni-nished by the
evidence for the I'uited States, to which we invite atten-
tion, and to wliioli we propose to add a Tew brief coni-
nientaries.
\'Ax\couvj:r.
Aidveny resi'ards $20 an acre as suffcient for 640 acres
at A^a'^couver now, (1866,) since otlier places developed. —
(U. 8. Ev., pt. 1, p. 56.) All the bottom lands overflowed,
more or less. The land is heavily timbered. — (p. 08.)
Farmers on ('oluml)ia bottoms have not prospered, be-
iiiii' drowned out bv floods. — ()). oD.)
Dcady thinks Company's claim at A'ancouver, without
reference to improvimients or town-site, \\ould be worth
from $1 to 8B per acre.— (U. S. Ev., pt. 1, p. 100.)
Llovd Bi'ooke values 640 acres, includinii; town-site at
Vancouver, at $20 an acre. — (U. ►<. Ev., pt. 1, p. 1.^1.)
Values the mile square, inciudinii; military reserv(i at II.
B. Company's post, ])art at .i^lO ah acre, part less than
government price. — (p. lo2.) The Harney place, near
the reserve, with a btiildiug on it. costinii- $2,000, con-
tainim^ 110 acres, oiiered lor .*2,000, and no purchaser. —
(p. l-]2.'l Mill i)lain, not worth more thaii government
price. It '-■ "'ory poor tind gravelly. — (p. 182.) Two-thirds
of foui'th plain wouhl bring $5 per acre. The wliole of
lower })lain worth $20 an acre. Saw no gang saw in the
mill, though he measured lumber therein 1840. — (p. 132.)
Oidy use'Com[)aiiy's buildings could be put to was for
storing bay. — ([). loo.) Leased the mill, in 1840, for a
trifling amount. — ([>. I06.) Cost of buildings to Com}»any
tritling, us walls were of refuse lumber, and th<! wages [)aid
were a- pittance. — ([>. 1;»1».) No other stock than slice])
could be kejit for any length of time on the plains near
Vancouver, which were above overflow. — (p. 141.)
An acie of laud, in forest, back of X'ancouver, could
not Ik* thnroiiiiliK- clcand and '.rrubbed fop h.^ss than
gr:
gi-
tlii
\n
tin
•2fl
y the Coin-
ravaf^anec.
hod b;- tho
ivitc atten-
bi-icf com-
»r 640 acres
iveioped. —
overtlo\ve(l,
l._(p. 58.)
)spcred, l»e-
•er, without
(1 he worth
100.)
town-site at
. 1, p. 131.)
3serve at II.
•t less than
place, near
$2,000, eon-
)urchaser. —
government
Two-thirds
lie whole of
g saw in the
.»._(p. 132.)
It to was for
1840, for a
to Com}>any
(! wages paid
k than slieep
L' plains near
. 141.)
■ouver, could
or less than
<^150. — (p. 151.) Doubted about \'aneouver as a to\ n-
site, because of the limited extent of farming land near,
and the shifting of the bars in the Cobunbia. Buildings
destroyed by nilitary, were utterly worthless. — (p. IhS.)
The Company allowed free use of the government wharf,
and no comparison l)etween it and Com[tany's old jetty.
—(p. 156.)
Buck. In 1846, no buildiugs on Sauve's island, except
two snudl log cabins, costing iijjout i^UW. No farming
on island. Only a snudl garden. — (p. 210.)
Love. Values tlie huid on Cohnnl)ia, below tlie reserve,
and including lower plain, at C5 an acre. — (p. 2;56.)
\'alues tlje 640 acres of reserve at $8 an acre. — {\). 237.)
A'alucs town-site, running a mile back from the i-iver, at
$50 an acre. — (/6.) Values land, along river, above
reserve, including mill-site, a mile in width, at $2 per
acre. — (//>.)
Douthet. Mill built by Company, in 1852, was worth-
less, but for the iron. — (p. 244.) It cost more to keep
the mill running than the profits amounted to. — (p. 245.)
Company, in 1852, quit running mill because it was
unprofitable.— (p. 245.) In 1852, saw remains of old
u-anii: saw-mill. It looked as if it had fallen down. Tho
grist-mill was in decay. — (p. 245.) The whole value of
grist-mill consisted in burrs and irons. Comiiany car-
ried off snnill set of burrs to Vancouver island. — (p. 245.)
There was another old saw-mill, which had been aban-
doned in 1852, and machiu'^ry taken out. — (//;.) Com-
pany's buildings would ouiv be useful as l)arns or sta-
bles. They had no valv). Hinee Company abandoned
them, they have not been occupied, except Government
used them to put' hay and straw in. — (p. 246.) Thinks
Company took doors and windows away. Taking the
first afi a central point, 1,020 acres, exclusive of buil-
dings, would be worth $10 to $15 per acre.— (p. 247.)
"\ alues 3,200 acres, on lower plain, having frontage on
th(> I'iver for five miles, at $5 to :?7 per i\vn\ excbisiv'c of
liflYW'
BES
:{()
! ,1
I \
m
improvements. — {ih.) The greater portion of this last-
mentionc-d land is subject to annual overflow. — (p. 247.)
Values tract below the last-mentioned land, ten miles
long and two broad, at same rate, from $5 to $1 per
acre. — (ib.) Values land above, including town-site,
running 6 or 7 miles along Columbia, and 3 miles wide,
embracing mill-plain and mill-sites, at $2 an acre. — {ib.)
Values countrv, back of tbe first, including six miles in
width, at ^2 an acre. — (p. ^48.) Expense of clearing and
ditching land is $f)0 an acre. — (p. 24'J.) Values water
privilege at grist-mill at from ^1,000 to $2,000.— (p. 2r,0.)
Values water-power, at saw-mill, at same price. — [ih.]
Overflow spoils the grass. — (p. 251.) Good grazing land
can be got, from 15 to 20 miles from Vancouver, at gov-
ernment price. — (p. 255.)
Applegate. Found, in 1866, only a few ruins, of no
appreciable value. — (p. 270.)
Applegatos values 640 acres, embracing tbe town and
fort, at $50 per acre. The 640 acres next surrounding
tbe first named 640 acres at $4 or $5 an acre, and tbe re-
mainder of country at $1.25 currency, ViO cts in gold. — (p.
279.) Tbe entire tract of land on wliicb Company's post
stood lias been increased in value 50 or $60,000 by the
establishment of a military post and a town, and not
from Company's miprovement. — (p. 270.)
Kinearson adopts report made by himself. — (Applegate
and Carson, p. 817.)
Carson adopts report made by himself — (Applegate
and Kinearson, p. 356.)
Belden. Engaged in surveying railroads in Oregon. —
(p. 380.) Never regarded Vancouver as a railroad point,
because considered the south side of Columbia the bettor
side for railroads from tSnake river down Columbia val-
ley.—(p. 300.)
Gen'l Ingalls. Went to A'ancouvcr in 1840. — (U.tS. Ev.,
pt. 2, p. 1.) Very small part of claim enclosed. — (p. 2.)
The proportion of the whole claim really occu[»ied wa?^
to
cc
lai
wo
I'l
wo
tl
up
CO)
bu
the
mi
It)
31
of this last-
V.— (r- 247.)
I, ten miles
5 to $7 per
2: town-site,
miles wide,
11 acre. — (ib.)
six miles in
clearinijand
ralucs water
io._(p. 2r>o.)
price. — {ilj.)
li'raziiig land
liver, at gov-
ruins, of no
the town and
surronndiiiu'
e, and the re-
^ in gold. — (p.
•mpany's post
0,000 bv the
own, and not
— (Applegatc
. — (Applegato
s in Oregon.—
•ailroad point,
ibia the better
Columbia val-
ty.__(U.t?. Ev.,
losed. — (p. -.)
occu[>ied was
small. — (p. ^>-) Buildings very dilapidated in IHGl. — (//>.)
A'ancouver, while witness was there, was a mercantile
establishment; Company did some farming and bought
sonic furs, but was really engaged in general trade. — (p.
4.) In 18(i0 the buildings were of no value to the United
States. — (p. 5.) The military authorities would rather
have had the ground cleared of the buildings. — {ib.)
Settlement of country brought into being many com-
j)eting trading establishments, in competition with which
Hudson's Bay Company could hardly succeed. — (U. S.
Ev., Part. 2, p. 0.) The fur trade gradually fell to
nothing. — (ib.) In 1860 land in town of A'ancouver
was worth from $100 to |!1000 an acre. — (p. 7.) In
1860 bought ten acres in town of A^ancouver for $1,000,
and lately sold it for the same. — {ib.) No increased value
in lands at Vancouver from 1860 to 186-3.— (//>.) Thiidvs
it im])rol)able a large town can be built at \ ancouvei*. —
(p. 8.) Thinks land would at one time have sold highev
than now. — {ib.) Inundations render lands near \'ancou-
ver on the river precarious for agriculture. — (10.) Over-
tlow does not improve rasturage. — (p. 14.)
Gen'l Grant. The inajority of the bottom land subject
to overflow in June and July, and lor that reason not sus-
ccittible of cultivation. — (U. S. Ev., i>t. 2, ]>. ID.) The
land not subject to overflow was [irincipally densely
wooded, and my impresion was, it was very I'oor. The
])lains were comparatively snudl prairies in this densely
wooded country. The woodland could not be worth any
thing to the Hudson's Bay Coni[>any as a trading post.
— {ib.) The buildings were such that soldiers could j>ut
up rajddly, the materials being near at haixl. — (p. 21.)
Senator Xesmith. The stvle in whichl) uildiuojs at Va!i-
couver built, the Canadian style, is not durable. The
buildings in 1843 were becoming dila[»idated on account of
the insufficiency of foundations. — (p. 23.) l»uildings
might have been built bv the commonest kind of lal)or.
Tn the last ten or twelve vears the huildiiiirs have L'"one to
I
J
fJli
«'!■
(looay very rapidly, and wlieii 'witness was last there in
1(S(I5, tiiey had nearly all rotted down. — (p. 24.) Very
slight improvement in town of Vanconvcr in last five
years. — (p. 25.) Does not believe there will be any great
improvement for many years. — {ib.) Portland is the em-
porium of Oregon and East Washington ; its great wealtli
and importance will prevent a town of conse(|uence grow-
ing np at Vancouver. — (p. 26.)
Steinberger. Owned one-half of ten acres in town of
Vancouver at most valua])le point thinks in town ; bought
at time of greatest expectation as to future of town, cost
$100 an acre. — (p. 53.) Thinks this property of less value
now than when bouglit. — (ib.) Vancouver not likely to
be an important point. — (p. 53.)
Wagner, In 1<S57 buildings old and some very mucli
dilapidated. — (p. 59.) In 1861 buildings not worth over
6 or ^8,000. — (p. 60.) Wharves in front of A^'ancouver
would not accommodate sea-going vessels except in liigh
state of water. — (p. 62.) Portland has destroyed [)rospect8
of Vancouver. — [ib.) Shoal in front of Vancouver ren-
ders it ineligible for town-site. — (p. 67.)
Howard. Shoalwater at a growing shoal, sufficient to
destroy tbe^dace as a town-site forshipi»ing. — (U. S. Ev.,
2 pt., 1). 60.)
Barnes. Jiuildings utterly valueless in 1860, except
for Company's purposes. — (p. 70.) As one of a board
estimated buildings when abandoned by Company at
$1)00.— ( p. 75.)
Gen'l McKeever. As memberof board valued buildings
at A'ancouver in 1860 at about $1,000.— (p. 78.) Never
valued Vancouver as a commercial point, because no back
country; the forests are dense, don't think it would pay
to clear them. — (p. 79.) In 1860 the buildings at A^incou-
ver not in a habitable condition ; don't think any one
wanted them except for the lumber. — (p. 81.) First board
valued certain buildings at |i250. — (p. 82.)
(ten'l A. .1. Smith. \'alued buildinirs in 1861 of Coni-
i
on
last there in
.. 24.) Very
I' in last five
be any great
id is the em-
great weal til
(luencegroAV-
es in town ot
own ; bought
of town, cost
^ of less value
not likely to
le very much
it worth over
if Vancouver
xcept in liigli
yed [irospects
incouver reii-
, sufficient to
.— (U. S.Ev.,
1860, except
e of a board
Company at
ued buildings
, 78.) Never
cause no back
it would pay
ffs atA'^ancou-
link any one
) First board
1801 of Com-
pany inside their stockade at Vancouver for government
purposes at $52-30. — (U. S. Ev., 2 }»t., p. 84.)
Judge IS^elsou. The buildings in 18r)2, had outlived their
day. — (p. 80.) Thinks Portland is to be the great ])lace
of Oregon. — (J.b.) Dr. McLaughlin said original cost of
buildings \vas $100,000.— (//a) McLonghlin saia before
184G, 1,000 to l,r>00 acres under cultivation. Saw-mill
and grist-mill tive miles up river. Cattle pernutted to
stray wliere they could find pasture. Cultivated land
near Vancouver, the rest pasture.— (IJ. S. Ev., l*art 2d,
p. 1)0.)
Gen'l Augur. As one of amilitary board in 1854, valued
Company's buildinsrs at A'ancouver, within military re-
servation, at $47,r)03. The board valued buildings on
basis of what they rented for.— (p. 105.) Col. IJonneville,
ofHcer in command military at Vancouver, endorsed on
valuation of buildings in i854, "they can stand a short
period only when they cease to receive the great care be-
stowed upon them." — (p. lOG.)
General Hardie. The buildings at Vancouver in 1860
Avere in state of great dilapidation ; not worth re[»air,
having no value except as hewn timber where sound
pieces could be found; very much of the timber was de-
cayed.—(p. 107.)
McFeely. In 1858 the buildings at \'ancouver were
old, almost uninhabitable, the material being rotten from
time and exposure.— (U. S. Ev., Pt. 2, p. 110.) Tlie
buildings were of no value to the United States in 1860;
if sold at public sale, doubts whether they would liave
brought n^,•re than the value of the land, or a trifie niore
at least.— (/6.) Buildings independent of the land would
not have sold for over 4 or $5,000.— (p. 128.)
Gen. Vinton. Estimates cost of buildings estimated at
rate of wages before gold excitement, at $70.— (p. 138.)
Including land enough for buildings.— (p. 182.)
Uen.Pleasanton. Knew Vancouver 1858-'.m;o. Build-
ings out of repair and dilapidated : huildings were rndc
f)
,..L. ,111.11 jaw
34
(p. 135,) \\^)nld not have given $10,U()0 lor whole estab-
lishment.— {ib.) Buildings of no value. — (p. 186.) Soil
around was gravelly and poor. — {ib.) The great objec-
tion to having a town above the mouth of AVillamette
river was the bar near Vancouver. — (p. 137.) Apart
from the increase to the town of Vancouver from trade
of the soldiers, the town made no progress. — {ib.)
(xcneral Sheridan. In 18')') buildings had decay of
old age. — (p. 207.) They were three-fourths of a mile from
river and of no value as store-houses, because of their
location. — (p. 268.) Actual Avorth of buildings but lit-
tle; no market for materials. — {ib.) The two store-houses
near the river the only buildings witness considered of
any value ; they were old and out of repair.^-(p. 260.)
Admiral Wilkes. In 1841 estimated CDst of buildings
at$oO,000. — (p. 280.) Mills badly located ; incapable from
backwater of use for most of the season. — (p. 281.) Val-
ued buildings on farms and Sauvies' island and mills at
$6,000. — {ib.) In 1841 officers of Company chnmed nine
miles square at A'ancouver. — {ib.) Estimates present
value of the tract of land claimed by Company, except-
a mile square around post, at from $1.25 to $1.50 an acre.
For fifteen miles the land is submerged for live miles
wide, nntit for crops. Above ])Ost some three miles like-
wise submerged ; the high prairie is gravelly and thin. —
(p. 282.) About eightv s(piarc miles subject to overflow,
-(p. 283.)
So far as the opinions of witnesses are of im[>ortance in
estimating value, it is obvious that the opinions of the
witnesses for the United States are of more value than
the opinions of witnesses for the Company ; for they arc,
to say the least, witnesses of as high chiiracter, of equal
intelligence, of greater number, and free from any bi.is
of interest; in which latter respect they have a great ad-
vantage over the principal witnesses for the Company.
But, fortunately, there are material facts in the evidence,
which enable us to form our own estinuite of value more
satisfactorily thiui to dc]iond on the opinions of others.
3r,
.'hole estab-
136.) Soil
i,Teat objec-
Willamette
r.) Apart
from trade
{ib.)
id decay of
a mile from
se of their
iiLfs but lit-
<torc-hoiisea
nsidered of
-{{). 260.)
of buildings
•apablc from
281.) Val-
iiid mills at
ilaimcd nine
itos present
any, except-
l.oO an acre,
r five miles
e miles like-
and tliin. —
to overflow.
iiportance in
lions of the
value than
for they are,
er, of equal
)m any bi.is
e a great ad-
e Company.
;hc evidence,
f value more
s of OtllOI'S.
The three elements of value in regard to Vancouver are,
1st, the town site; 2d, the buildings; ->d, the lands.
1. As regards the town-site. There is nothing, about
which persons of sanguine temperament, or persons in-
terested in particular localities, are so prone to build
castlcH in the air as the speculation of town-sites. And
this remark' is peculiarly applicable to persons in the
United (States. The progress of the country has l>een
so wonderful, and certain commercial points have grown
with such startling rapidity, that men's imaginations
run wild upon the subject. Establishing new towns is
a regular business in the new territories. The im-
posing title of city is frequently bestowed on a hamlet
and blacksmith's shop at a cross-road. Here and there a
point well located meets with great success, and what was
but yesterday the lodge of the savage is to-morrow the
mart of busy commerce. The comjtaratively few loca-
tions which succeed are remembered and commented up-
on, and the numerous failures are forgotten. The new ter-
tories are covered with the skeletons of intended cities,
which ]ierished in the hour of their birth, mementoes of
the fallibility of human Judgment and the impossibility
of roadiuiT the future with certaintv.
We have in sight of the Capitol an illustration of this
folly and delusive hope. Under the administration of
President Jackson the foundations of a new city were
laid with imposing ceremonies at the termination of the
long bridge, on the A'irginia side of the Potomac, to
which the imposing title of Jackson City was given ;
but the city has obstinately refused to grow, and still
exists only ujton paper.
It is not surprising, therefore, that, in opening a new
region to civilization, as the valley of the Columbia, the
imaginations of men should have become excited, and be-
wildered with the idea of etnbryo cities. We are, there-
fore, prepared to find that what we may properly des-
ignate as the citv mania,— tin usual lunacv of new coun-
•iww^
Ijllilljl
m
tries, — took strong hold of people in the vulley of tlie
Colnml)iu, and sites for future cities were liberall}' dis-
covered along the river. Tiio Company's agents, at
Vancouver, were not slow to catch the infection, and Sir
-lames Douglas and Mr. McTavisli, and otlier ofHcers of
the Company, began to imagine they licard tlie chimes of
a liundred stee[>les at A'ancouver, and the roar of a vast
current of liumanitv pourinii" into it, to iiudce it the Xew
York or London of the great Pacific. It is only in such
a condition of mind that we can discover any palliation
for the extravagance of estimation of Sir James Douglas,
Mr. McTavish, and other of the Com})any'8 officers,
which it would otherwise be necessary to impute to de-
liberate misrepresentation and false practice.
Dut the facts of the case very soon pricked this bub-
ble.
In the tirst place, the temporary show of progress at
A^ancouver, was owing to the military reservation being
established there. This, in a large degree, made Van-
couver what it was. But this was only a temporary
matter, and could produce but a certain limited result,
liable to end at any moment by the removal of the forces
stationed there, and should not be taken into consideration
as an clement of permanent growth.
Nature was against Vancouver as a town-site.
a. There w^as no back country to support a town. Tlie
country on which it would depend for support, was either
subject to inundation, or overshadowed by a continuous
forest, whose vast growth defied the labor of civilization
to reduce it to cultivation, except at an expense so enor-
mous as did not justify the undertaking.
b. The bar in the Columbia impeded navigation to such
an extent as to render Vancouver unfit for a commercial
site.
c. Then, Portland, nearer the sea, and at the mouth of
the Willamette river, possessed such superior advantages
that it entii'cly ct-lipscd Vancouver.
i
87
alloy of the
iborally dis-
5 agents, at
ion, and Sir
er oflieors of
ho cliimos of
)ar of a vast
i it the Xew
only in such
ly palliation
les Douglas,
iv's officers,
iiputo to de-
ed this bub-
■ [)rogross at
vation being
, made Van-
i temporary
mited result,
of the forces
onsideration
site.
town. The
•t, was either
II continuous
f civilization
LMise so enor-
ation to such
I comniereial
the mouth of
r advantatrcs
(I. Then, the south side of the Columbia is better for
railroads.
Weighed down by iidierent disadvantages, and su])-
])lanted by a rival more favored by fortune, Vanoouvor,
then, has been a failure as a town-site. Tliis, of course,
implies a corresponding fall in the prices of land at the
place, which we are informed, in the evidence, has been
the case.
2. As regards the Company's buildings at Vancouver,
in valuing them we are mot with several stubborn facts.
a. As far back as 1H4>3, according to the evidence of
the Hon. Mr. Nesmith, the buildings were dilapidated.
This condition of decay of course increased with age
and the neglect of the Company, until, upon the even-
tual abandonment of the buildings by the Company,
. they were, as the evidence states, but little more than a
mass of ruins.
b. Again, it is in evidence, that the buildings were
unsuited to any business except the Company's. They
{ l)ossessed, therefore, no exchangeable value. The Com-
l)any had no further occasion to use them for the oriirinal
, purposes for which they were constructed, and no one
else had any use for thorn. They were, therefore, of lu)
:; value, other than the trilling value of the materials.
And, in this point of view^ it is immaterial what those
. buildings cost. The question is, what were they worth
when the Company ceased to occupy them?
3. As regards the lands around Vancouver.
The nature of those lands is precisely explained to us,
in a few words, by Gen. Grant, lie says "the great
majority of the bottom land was subject to overflow. *
"" * That not subject to overtiow was »iousely wooded,
and very poor. The woodland was, I think, not worth
anything, except the value given to it by settlement." In
t'lese few, and pointed words. General Grant lias daguor-
reotyped the country, so that we may see it with our own
joves.
.)0
I'
til'
f^
V
a. The country is in tliis most imibrtiiniite roiidition : —
tlie upliuids lire silinost univorsally covered with heavy
and dense forests, wortli nothinsjj as mere timber, owiny
to the cost of transportation, and so expensive to clear,
especially as the hind when cleared was very i)Oor, that it
is ruinous to clear it. In short, in these vast forests
around Vancouver, as iti the forests of the Amazon, na-
ture seems to raise insurmountable obstacles to the pro-
gress of human settlement. Forests seem to frown aus-
terely on civili/ed man, and appear to repcll cultivation.
h. The lowlands are subject to oversow during the
summer months. The water at the time of overflow is
cold, between 40 and 00 degrees, a temiterature unftivora-
ble to vegetable nuitter, and the deposit is not fertilizing,
being sand produced by attrition of rocks. Half the
country is permanently occu[tied by sloughs and ponds.
The overflow is neeessarily ruinous to agriculture, as it
often continues from May until August. It also injures
the grass, which, there, has less time to grow in, and is de-
8tro3'ed during the best growing months of the year. It
is difHcult to estimate the injury caused by the annual
inundations.
In view of these facts, we are not suri>rised to learn that
the settlers in the bottoms have not prospered. It would
be very strange if they did.
c. The mill was built in 1841) for a trifling amount.
Ilunning of the mill did not pay expenses. The mills
were badly located, subject to the influence of the over-
flow of the river, and thus liable to long stoppages.
From a consideration of these various controlling facts,
wdiich are indisputably established by the proofs, it is
evident that a very low valuation must be placed on the
Company's claim at Vancouver.
Cowlitz.
It is difMcult to see ^^ hy the Company should claim any
thing for this post.
00
(.'Oiulition : —
3(1 with hoavv
imbcr, owiiiu'
sive to clear,
y poor, that it
3 vatst forests
Amazon, mi-
les to the pro-
to frown aus-
sll cultivation.
\x during the
of overflow in
ture unfjivora-
lot fertilizinii',
ks. Half tlie
hs and ponds,
riculture, as it
it also injures
' in, and is de-
' the year. It
by the annual
d to learn that
•ed. It would
itling amount,
es. The mills
le of the over-
■itoppages.
ntroUing fact:^.
e proofs, it is
I placed on the
ould claim anv
1. The Company were not disturbed in their occupa-
tion.
2. It became of no use to the Company.
J3. I'art of the buildings were v/ashed away, the re-
mainder sold by Company.
Tolmie. Warehouses at Cowlitz no longer of use when
nothing raised at Cowlitz farm; one was destroyed by
caving in of the bank, the otlier was sold by Company's
agent.— (U. S. Kv., i)t. 1, p. 104.)
Huntington. Buildings i)ulled down and used by wit-
ness. Bought them from an agent of Comi)any for $75.—
(p. 39.5.)
Howard. Post was being washed awav.— (U. S. Ev.,
pt. 2, p. 68.)
Wilkes. No station of Company at Cowlitz in 1841.
— (p. 277.) The place is low, and subject to overflow
from both rivers. — {il>.)
('. T. Gardner. Conipany had a store there; it was a
log house about 30 by 15. Xo wharf.— (p. 325.)
McTavish. Company not disturbed in its occupation
at Cowlitz post.— (Miscellaneous Ev., p. 155.)
Fort (jeoiuje.
It appears, from the evidence, that the Company is en-
titled to nothing here.
1. The Company's buildings, at Fort George, were
worth but a tritle in 184G.
2. That the Company abandoned the post in 1846 or
1847, and that the buildings rotted down, and were
removed.
3. Buildings dilapidated in 1841 and 1844.
Gray. Buildings worth nothing in 1846. Company
left them in 1846 or 1847, and they rotted down, and
were removed.— (r. iS. Ev., pt. 1, p. 166.) Two acres,
round old fort, worth $1,000. In 1846, worth half this
sum. — (p. 167.)
; ' ^ilffyfTii"
-10
Suininors. l)Mil(Vm.2:s in 184(1, wortli .*?')()(). Two
acres of land, round tlio fort, worth .<?100 an aero. — (j».
im.) In 1850, buildings at worthless.— (p. 194.)
Taylor. Buildings, i^i 184(5, worth from W^O to $700.
— (p. 1!>7.) Land occupied by Fort worth, in 1840, .$10(1
to $150 an acre. — (p. 108.)
Welch. In 184t), buildings old, scarcely fit to live
in, worth from $500 to $800. Land at fort, two acres
cleared, cost about $300 an acre to clear it. — (p. 208.)
Buildings rotted down partly, renuiinder occupied by In-
dians, who destroyed them. — (p. 204.)
Nesmith. At Fort George, in 1844. There were
then two or three old buildings, and small patch of
enclosed ground; buildings dilapidated, they might have
been worth $100 or $200. A village has sprung up below
old post.— (T. K. Ev., pt. 2, p. 29.)
Nelson. McLaughlin says Couipany had post at in
184(J; no farm — a garden. — (p. 100.)
Admiral AVilkes. Post dilapidated Ui lh4l. — (p. 275.)
Two acres enclosed. — [ih.)
Buildings cost $500 or $000, and the two acres en-
closed worth $20 or $25 an acre. — [Ih.)
Gilpin. In 1844, only a single building. Only trade,
salted salmon. Values buildings at $1,200 to $1,500.—
(p. 339.)
Swan. In 1852, no vestige of any post here. — (p. 243.)
Feale. Buildings at in 1841, worth not over $500 or
$000.— (p. 345.)
Gibbs. In 1849, buildings four in number, common
log huts, ver\' much out of repair. Company had aban-
doned it as trading post. In 1850, Maj. Hathaway put
buildings in some repair. — (p. 400.) Company never
occupied post after Maj. Hathaway left, in 1851, and
buildings rotted down, or were torn down by claimants
of the land. — (p. 401.) In 1853, buildings of no value.—
(ih.) No Indian trade there in 1850. — {ih.)
^
1
^rm. Two
xi\ acre. — (p.
1!>4.)
S;500 to870o.
inl840, .l^lno
Iv tit to live
I't, two acres
it.— (p. 208.)
Mipied by Iii-
Tliere were
lall patch of
y niiglit have
ing up below
1(1 post at ill
41.— (p. 275.1
Avo acres eii-
Only trade,
) to $1,500.—
ire.— (p. 248.)
; over $500 or
ber, common
my bad abaii-
rlatbaway put
nipany never
in 1<S51, and
by claimants
>f no value.—
41
Chinook or Pii,i,aij Iiock.
It ai)pears that iiotlnng is clainjable lioi'o.
1. The Company never occnpied this station.
2. In 1840, the buildings were worth about $1(10, and
the land so valueless as not yet to he taken up at gov-
ernment price.
Tolniie. Fishing shition not oceujiied by Conipanv.—
(U. ►S. Ev., pt. 1, p. 100.)
Gray. Was at Chinook in 1844 and 1840. Saw
nothing.' thei-e but tein[)orary sheds, and a ivw tanks for
salting salmon. Comi)any abandoned it in 1840 or "48. —
(p. 105.)
Taylor. Building worth about $100 in 184!>.— (p. 100.)
Land at not worth over government price, as no one
has taken it up. — (p. 100)
Welch. In 1840, buildings worth $:]()()._(p. :i04.)
It did not cost that much.— (//y.) Land worth nothing,
except as lisbing station. — (p. 205.)
Wilkes. Company, in 1841, had no station nearrillar
Rock.— (U. S. Ev., 2 pt. p. 277.)
Gibbs. Kever knew of Company occupying station
there or claiming it. In 1850, it was occupied by llensill,
American citizen.— (p. 402.) Oidy building, a drying
shed, such as Indians are in habit of constructing for their
own use. — (p. 402.)
Cape Disaitointment.
It appears from the evidence that —
1. The Company had no possessory rights of any kind
at or near the Cape in 1840 or prior thereto. Such being
the case the Company have no claim in regard to this
locality.
2. The building occupied by Kipling, the only build-
ing the Company appear to have any claim to, was more
than a mile from the Cape.
8. The only possessory rights the Company could
possibly have to a location near the Cape, and that ac-
0
■ ||iii[ii:r';'ir
42
||!|l|i'i1'
(luircd after 1S40, is to tlio KipHiii;: lionso and tlio spot
of land on winch it was built. The valuation of this
houBO and spot of ground is insignificant.
4. ^.1 no event would land taken for government pur-
])o,es be valued at speculation prices. A fair and rea-
sonable valuation would be the correct I'ule.
Gray. Was at Cajte Disappointment in 1(S44 and 1846.
Buildings cost about ^SoO.OO.— (U. S. Ev., pt. 1, p. 107.)
G40 acres round worth nothing for agricultural purposes.
If worth anything witness would have occupied it. — (ib.)
House built'after^846.— (p. 186.)
Summers. McDaniel, in 1845 or 46, took claim.
Wanted witness to draw deed for it to Mr. Ogden. — (p,
193.)
Taylor. In 1851 saw building there, said to have been
put up for Mr. Ogden. It was unfinished. Cost be-
tween $200 and ,§:300.— (p. 199.) 640 acres of land
would not be worth over $1.25 an acre. — (ih.)
Xesmith. Was at Cape in 1849. Saw nothing but
some Indian huts. — (U. S. Ev., pt. 2, p. 30.) Knows of
no value for this place but lor light-house and fortifica-
tions.— (ih.)
Steinberii'cr. In 1850 saw an old buildinc; of verv
little value. A\'rv little cleared land around it. — (p. 53.)
Ilowjird. Saw nothing at Cape in 1853 but a fish-
house. — (p. 68.)
Nelson, McLoughlin said Company established post
there in 1847. Ogden took claim there. — (U. S. Ev., pt.
2d, p. 100.;
AVilkes. Ir. 1841 no post or building or person at
Cape. Five hundred dollars would be a high price for
land for fort and light-house. — (p. 277.) Light-house
only useful to indicate position of Cape at night, not for
entering river. — (p. 290.)
Davidson. In 1851 would not have paid governmeiit
price for land. Saw no indications of occupation hy
Company.— -(p. 307.) Land for lightdiouse not wortii
■§
13
1(1 tlio spot
tiou of this
nmcnt piir-
lir luul rea-
44 and 1846.
t. 1, p. 167.)
•al purposes,
led it. — (ib.)
took claim,
Ogdeii. — (p.
to have been
I. Cost be-
res of land
)
nothing but
I Knows of
md fortifica-
ing of very
[ it.— (p. 53.)
3 but a lish-
,blished post
IT. S. Ev., pt.
or person at
gh price for
Light-house
ight, not for
government
scupation by
se not wortli
over governnuMit ]trico.— (p. 308.) Land enough lor
liglit-house not wortli over $10.— (/A.) Entrance of Co-
luml)ia niost dangerous. Knew of vessel lvin<«' oH' 40
days })efore entering. — (p. 300.)
Harrison. Surveyed Cape ir 1851. Saw no l)uildin<rs
or ruins or cultivated land. Land not wortli goveriiincnt
jirice.- (p. 313.) About 3 or 4 acres needed for light-
house. Worth for public use government j)rice. — (p. 3>i4.)
Kipling living in log house worth considerably less than
.^1,000. Light-house important only to hold on by at
night, —(p. 315.) Donbts whether Cape proper place lor
light-house. — (p. 317.)
Swan. Visited leaker's Bay. Never Heard of any
claim at Cape by Company. — (p. 343.)
Peale. Xo tract at Cape containing 640 acres tit for
cultivation.— (p. 344.) In 1841 no building or prepara-
tion for l)uildinii'.
McMurtrie. Visited a house in 1850 a mile or more
from Cape or Baker's Bay, said by the man in charge to
iiave belonged to Comitany. This house of hewn logs,
30 l)y 20, one story. Could not have cost over $300 or
i?400. — (p. 373.) Saw no cultivated ground about this
house. — (ib.) Xo value could be attached to the laml on
Ciipe. — {lb.)
Gibson. Cape rocky, with thin soil in most places.
Land valueless except for timber, of which country is full.
Saw small house some distance from Cape. House not
worth over $500. — (p. 376.) Light-house important to
make and hold on by, but light-house at Point Adams
more important. — (]>. i76.)
Gibbs. Never saw or knew of trading post of Com-
pany.— (p. 402.)
McTavish. Umible to say whether C-ompany had done
anything at Cai)e befor< 1846. Found Kipling there in
1846, "in a kind of log cabin." — (Miscellaneous p]v., }).
157.)
I ' I"! I nil
^\^T
44
IV:'
CuAMPOKli.
It appears from tlic evidence —
1. That tlie buildings Avere washed away and rotted
down. lender tljis state of facts the possessory rights of
the Company in tlicsc buildings are of no value.
2. Tlie land, after the flood, is only valued at ^5 an
acre.
3. The Company claim for certain lots purchased of
American settlers. This item, it is submitted, does not
come vv'ithin the provisions of tbe treaty.
Buildings washed away or rotted down. — (U. S. Ev.,
pt. 1, p. 19. Lovejoy's ev'd.) Thinks $2,500 or $3,000
would build the buildings. — {ib.)
Buck. In 1850 buildings could be built for $2,000.—
(p. 212.) Buildings washed away in 1801. — {ih.)
Appcrton. In 1858 buildings not worth over $4,000. —
(p. 211>.) Buildings washed away. — (p. 211).) Land at
landing not worth over $50 an acre, ami after the iiood
not worth over $5 an acre. — ([). 210.) Buildings not
worth over $1,500 or $2,000 when washed away. — (p.
220.)
Barlow. In 1846 cost of erecting the buildings would
have been from 4 to $5,000. — (p. 223.) Buildings rotted
down and washed away. — {ib.) The value of the build-
ings in 18»)1, before being washed away, from $1,000 to
$1,500.— (p. 224.)
Kesmith. In 1844 there was a small dwelling house,
granary, and small store; cheap rough buildings.
Buildings might have been i)ut uj) for $1,000 or $1,500.
Land not valuable.— (U. I?. Ev., 2d pt., p. 20.)
Xesmith. Cliampoeg of no future imi)ortance. — (U.
S. Ev., i>t. 2, p. 29.)
Wilkes. Comi)any had no station in 1841. — (p. 278.)
Gilpin, in 1844 saw no buildings but sheds. Did
not understand the Company liad station there. It was
used only as a landing place. — (p. 335.)
185
ran
niei
vail
, (p.
i i)v
\
11(1 rotted
,- rights of
e.
at $5 an
•chased of
, does not
U. S. Ev.,
or $3,000
• $2,000.—
r $4,000.—
Land at
the Hood
klings not
away.— (p.
higs would
injjs rotted
the bnild-
1 $1,000 to
ling house,
buihlings.
or $1,500.
)
taiico. — (U.
-(p. 278.)
(heds. Did
ire. It WiiH
45
Umpqua.
It appears from the evidence —
1. That this post was abandoned by Company during
Indian war, and never re-occupied. This failure to re-
occupy the post shows it must have been of little or no
value to the Company.
2. The barn and otlier buildings were burnt.
3. A house was built by Chapman at Umpqua, which
should not, it is submitted, be taken into consideration
in estimating value of the post, as it w^as built since
184G.
AV. W. Chapman. Rented Umpqua post in 1853, at
$100 or less.— (U. S. Ev., pt. 1, p. 11.) About 30 or 40
acres enclosed at this post. — (p. 12.) Some of the build-
ings destroyed by tires which raged in that region. — (p.
13.) Values buildings at U. at about $200. — (p. 13.)
Thinks land claimed by Company never worth over $10
per acre.— (p. 14.) Thinks $10 would have been a high
price. — (lb.) In 1861-2 a Hood washed out lower Ump-
qua.— (p. 15.) Gov. Gibbs values buildings at $1,500. —
(U S. Ev., pt. 1, p. 22.) Values land claim at $5 an
acre.— {[().) Gov. Gibbs, in 1851, sold claim of 320 acres,
about 80 acre'] of it as good as Umpqua claim, about 1.1
miles from Umpqua, for $250. — (p. 24.)
Tolmie. Umpqua abandoned after Indian war. — (p.
100.) And the post was not afterwards occupied because
Indians put on it as reservation. — (p. 104.)
Deady. 040 acres around Umpqua would have sold,
from 1853 to 1860, at from $1 to $4 per acre.— (p. 108.)
Applegate. Surveyed section of land at Umpqua, in
1850 or 51, for Company. Cattle not confined in their
range to this section. This section, excluding improve-
ments, worth now $2 an acre. No improvements of
value remain. Barn and other improvements l)unit. —
(p. 266.) A house worth $400 or $500 was built diere
l>y Chapman, still standing.— (]». 267.) The section of
It
I
I:.
!■*
11.,
I
i
I
■ I "■i'm
^T;
!■•> ■ iwmm^^immmmirmmmt
•lii
111*
r
4i>
land at Ump([ua and its inipioveinents might have been
sohl ill 1850 at from 3 to $5,000.— (p. 281.)
Nelson. McLoughlin said post established in 1884.
Limited degree of agriculture there for use of post. Some
cattle, pigs, and brood mares sent there. — (U. S. Ev., pt.
2, p. 100.')
ITuntington. Umpqua has no connection with Cali-
fornia trail. — (p. 146.) Between 100 and 150 acres culti-
vated land. — (p. 147.) Thinks buildings cost $1,000.
hi 1850 buildings much dila}>idated, worth nothing to
any one but Company. — (p. 148.) Buildings did not
average more than 8 feet to eaves. — (p. 154.) Good land
in Umpcpia valley worth, unimproved, $2 to $4 an acre. —
(p. 155.) Farms in valley sold, with dwellings and largo
part of land fenced, from $3 to $5 an acre. — (p. 155.)
Stock ranged on public land; no one thought of j)aying
for grass. — (p. 150.) The cost of Indian labor to Com-
pany a mere nothing; they were subsisted on potatoes
and salmon, and paid in trinkets and clothing at most
enormous prices. — (p. 162.)
Dr. Thompson. In 1852 buildings dilapidated; some
had fallen down. — (p. 218.) One-half land around wa?:
good. A mile square around the post worth from $2,000
to $2,500. — (?Y>.) Iload to California passed on opposite
side of river. — [ih.) Farm is only valued now at $1,500. —
(p. 219.)
Gov. Gilpin. Informed in 1844 that trade diminish-
ing.—(p. 336.)
Dowell. In 1852 buildings not worth over $500. — (p.
358.) A mile s((uare, in 1852, would have sold for $1,500
or $2,000. Present value not as great. — (p. 359.)
Destroyed by fire about 1851. — (Gov. Stevens' Rep.,
Miscellaneous Ev., p. 223.)
N'ez-Perces or "Walla-Walla.
It appears from the evidence —
That the Company sold the old fort in 1860 foi
$900.
I
;ba
ill!
J str
': val
I (p.
I stH
I
■il„.;*n|
m
t have been
ed ill 1834.
post. Some
T. S. Ev., pt.
i
1 with Ciili-
0 acres ciilti-
co8t $1,000.
1 nothing to
nirs did not
I Good hind
$4 an acre. —
igi? and hirgo
I'e. — (p. I'')'').)
ht of payini,^
bor to Coni-
[ on potatoes
thinir at most
i dated; some
I around was
h from $2,000
[ on opposite
w at $1,500.—
ide diminish-
/er $500.— (p.
5old for $1,500
. 359.)
Stevens' Rep.,
\.
irt in 18(30 for
o
Tliatin 18G2 tlie bnildini^s were almost entirely de-
stroyed.
8. WaUuhi lias been superseded by Umatilla.
Aukenv. G40 acres of land there worth not over $1.25
per acre. — (U. S. Ev., pt. 1, p. 44.)
Meek. Soil sand and <rravel, worth nothing for agri-
cultural purposes. — (IT. S. Ev., pt. 1, p 08.)
Tolniie. Abandoned on account of order of Olney, In-
dian agent, in 1855-0. Company afterwards made no
effort to re-occupy it. — ({). 100.)
W. H. Gray. Buildings did not cost over $250.00.—
(U. S. Ev., pt. 1, p. 101.)" Value of buildings at $1,000.
-{lb.)
Applegate. The old fort sold in 1860 for $900.— (p.
274.) Valued what remained of old post at $200. — (p.
273.) ;N^o land fit for cultivation.
Applegate. Town property in Wallula could not be
sold for cost of improvements. — (p. 291.)
Kinearson adopts report made by Applegate, Carson,
and witness as to this post. — (p. 317.)
Carson adopts report made by A[)plegate, Rinearson
and witness. — (p. 350.)
Xesmith. Post in 1843 of adobe, may have cost $2,000 ;
saw no enclosed lands near it. Country aronnd sandy
<lesurt.— (U. S. Ev., 2d pt., p. 28.) Does not think Wal-
lula will ever be important. — (p. 28.)
Nelson states, or McDongal says, Walla-AValhi mere
fort, poor soil, cost a good deal, no farms tbere, small
garden, no trade in furs, built to subdue Indians. — (p. 99.)
^icFeel3\ In 1853 fort consisted of two or three, pro-
bably four, snuill buildings, adobes. The country adjoin-
ing was barren and sandy, with the exception of narrow
strii)s near the Touchet. Saw no land there under culti-
vation ; does not think cost of buildings over $5,000. —
(p. 121.)
Huntington. In 1802 buildings almost entirely de-
stroyed. No laud enclosed at post. Company had a farm
BSEE
9i
, I-
i4
f
1;
.'I
ili
«' ■■ .;:!'i::
": ili:
48
twetity miles back in Walhi-Walhi valley, some 20 or 80
acres, excellent land, worth $^ or $10 an acre. No build-
ings on farm. — iib.) Umatilla has superseded Wallula.
— (p. 150.) l!^ever heard of any enclosure around post.
Seen great numbers of Indians pasturing their horses in
hills back of fort. Land sandy desert. — (p. 164.)
Col. Gibson. Nez-Perce was more a halting place for
Company's ponies than anything else. Some little trad-
ing with Indians with ponies. — (//;.)
Cain. In 1859 buildings dilapidated ; have been rebuilt
by traders, believes at their own expense. — (p. 223.)
Buildings vrorth in 1859, betbre being rebuilt, ^2,500 to
$3,000. — (p. 224.) No good farming or grazing lands
under fourteen miles. — (ib.) In 1859 mile scj^uare of land
had no particular value apart from buildings; since then
it has become valuable as a landing for the mines, and to
a limited extent for country around. — iih.) Tiie part that
lias become vahuible is where the buildings are. — (p. 237.)
About 80 acres. — [ib.) The rest of the mile-square has
only a speculative value. — (p. 238.)
Shoemaker. In 1862 Van Syckle called landing at old
Walla- Walla, Wallula.— (p. 252.) When Van Xvckle
went to it there was no apparent occupation by Company.
— {ib.) After gold excitement over, Umatilla sprung up,
and Wallula declined; the trade was diverted from Wal-
lula and Van Syckie became ruined. — (ib.) Wallula went
down with Van Syckie; nearly all the buildings ceased to
be occupied, and a number of them were torn down. —
(p. 253.) The old buildings of the Company, before 1860,
were in a dilapidated condition ; worth $500 to $1,000
provided any one wanted them. — [ib.) Witness is liousc
builder and carpenter. — (lb.) Lewiston above has taken
the upper trade from Wullula. — (p. 254.) Land around
of no value for several miles, the bottom lands subject to
overflow. — {ib.)
Gov. Gilpin. Country around extremely sandy, of no
value for cultivation or pasturage. — (p. 332.) From five
d(|
in
Gl
iv\
w
(I
t(J
eil
)il!1*l|
411
>(l or 30
obuild-
Vallula.
nd post.
orses in
)
>lacc for
;tlc trad-
u rebuilt
p. 223.)
^2,500 to
ng lands
■e of land
ince then
es, and to
part that
-(p. 237.)
L^uare has
lina; at old
m iSvckle
Company,
prung up,
from Wul-
illula went
s ceased to
n down. —
3tbre 18G0,
to $1,000
ss is house
has taken
,nd around
subject to
mdy, of no
From live
to seven acres cultivated land worth §10 to $12, mx ucro.
—(p. 338.)
Dowell. In 1835, post would not liavc sold for over
.$2,000. — (p. 3(31.) The agent in charge said the Company
left the post from fear of Indians. — (///.) The reason
things not moved from post when it was abandoned, was
from want of transportation, — (p. 302.) Land around a
barren sandy plain. — {ih. )
Terry. In IS')! buildings not worth $10; of no value
now. — (p. 301.) Original cost of buildings not over
§2,500.— (p. 391.)
Gibbs. In 1853 post utterly valueless, except as a sta-
tion where horses kept for the trains. Not trade enough
to warrant its maintenance. Fort in very inditferent re-
pair. Some eighteen or twenty miles up the Walla- Walla
river is a so-called farm on which were two snnill build-
ings. Some twenty acres at farm cultivated in different
spots. No vegetation on land round fort capable of sus-
taining animals. — (p. 403.)
Nez-Perces post in 1854 almost wliolly valueless, except
as a station where horses can be kept for the trains. —
(Gov. Stevens' Report, Miscellaneous Ev., p. 221.) Eight-
een miles up Walla-AValla river to so-called farm, on
which are two small hovels. The dam formerly here for
irrigation is broken down. Considers $5,000 a large
estimate for post and farm. — (Jb.)
Fort Boise.
Fort and buildings being of uni)ur)it brick, are melted
down by rains. It' l)uildings there in 1843 existed
in 1863, would not have sold for over $1,000. — (Gov.
Gibbs, IT. S. Ev., pt. 1, p. 34.) Soil about post, barren
and sandy, with no timber except scrubby cottonwood and
willow, on the Boise, and very little of the land tillable. —
(p. 34.) The best unimproved land at post worth from $3
to $5 an acre, and it would be some time before it would he
entered at $1.25 an acre. — (p. 34.) Hoofs of buildings
■IV
no
i }•
!.i|fii
,f<j(ji
.^.j:
r '['if
made of sjilit lo,s;a, covered w\{\\ dirt. — (p. 20.) Land
roqiiiros irrigation. — (i». 30.) No Indian trade tliere now
{186(>) of any valne. — (|). ij\K) McCarver saw post in
1843.— (p. 31.I.)
Aukenj. Saw post in 1850. Buildings a good deal
dilapidated. — (p. 42.) Bnildings worth nothing for agri-
cultural ]>urposes. — (p. ^'^.) Miglit, as a place of deposit,
be worth $2,000. — {ib.) Soil around alkali, brush and sand
the most of it. — (p. 42.) Would class it with government
land, $1.25 per acre. Some 4 or 5 miles oft", land better.
The Company's agent told Aukenythe Indians around
had got lazy, and he thought the}' would have to aban-
don the post.— (U. S. Ev., pt. 1, p. 40.)
Meek. Says "the soil is very bad about Boise." Sand,
sage, and greasewood is about all. — (U. S. Ev., pt. 1, p.
(37.) Don't think the land would he worth anything for
agricultural purposes. — (p. 67.) Buildings cost about
$1,000.— (p. G7.)
Tolmie. Fort Boise abandoned in 1850, because Snake
Indians became hostile. — (U. S. Ev., pt. 1, p. !M».)
Gray. Buildings cost less than $250.— (U. S. Ev.,
pt. 1, p. 163.) Lands near not worth over $1.25 an
acre. — [ib.)
Nesmith. Buildings 1843, worth about $1,000. Two
or three acres enclosed. — (L'. S. Ev., pt. 2, p. 27.)
Nelson. Dr. McLoughlin said, no farms at Boise.
Post established to keep Indians in order.
McFeely. In 1854 the fort consisted of one or two
adobe buildings, or one building with three or four small
apartments, and a small corral. Thinks the cost of buil-
dings not over $2,000. — (p. 122.) The land around barren
and sandy. — {ib.) Saw no land enclosed or under culti-
vation.— (ib.)
Col. Gibson. Would not have given anything for
buildings.
Col. Keno. In 1859, buildings pretty much in ruins. —
(p. 200.) Bnildings were worthless. — ([>. 210.)
i
11
C(
HI
PJ
cli
tif
a
11
ti
.1 , ;,:H;
51
Land
cro now
post in
»od deal
for agri-
dcposlt,
and sand
ernment
d better.
IS around
; to aban-
" Sand,
, pt. 1, P-
rtbing for
ost about
luse Snake
W.)
J. S. Ev.,
I- $1.25 an
,000. Two
27.)
s at Boise.
one or two
,r four small
uost of biiil-
•ound barren
under culti-
mytbing
for i
;b in ruins. —
.0.)
Colonel Reno saw no cultivated land. — (p. 211.) Soil of
alkali nature, sage brush, very inditterent for cultivation.
— (p. 211.) As to pasturage, I do not think a herd of a
hundred animals could live within range of the post, and
be at all serviceable. — {lb.) Found it useless to send ani-
mals there for pasturage. — [id.)
Simpson. In 18r>3 buildings in dilapidated condition ;
the land nearly a desert, with excejjtion of little strips
alouii' river. Values buildings and land in l><i')d at
$0,000. In 1855 very little difference in value ; buildings
may have depreciated some. — (p. 202.)
George Gilpin. Similar to Fort Ilall ; buildings some-
what better; of less value as trading post. Chief use, as
a place of rest for Conipany's ti'ains. Sa\v' no enclosed
land. Should not value buildings and post over $2,500
or 83,000.
Allen. In 1852 the value of buildings so slight it
would be ditHcult to estimate it. Saw no trade there.
The employee in charge said trade did not pay his com-
l)ensation. — (p. 306.)
Dr. Sucklev. AUowini? for time adobe bricks are dry-
ing, the mere labor of building such fort ought to be
perioriiied by twenty-five men in five days. — (p. 248.)
Fort Boise in 1854 merely a stopping place. Estimates
Fort Boise and Fort llall at $15,000.— (Gov. Stevens' R.,
Miscellaneous Ev., p. 223.)
It is to be noted that Fort Boise was abandoned in
185(5 by the Company on account of the Intliaiis be-
conung hostile, an<l no effort was made by Company after-
wards to re-occupy it. This, it is submitted, shows the
post was valueless.
It is further to be noted that McKinlay, one of the
chief factors of the Company, could not define any par-
ticular lines of the Company's claim at this post. In the
absence of such evidence, it is submitted the Company's
limits must be restricted within the narrowest range, as
the Company are bound to prove the extent of tlu'ir claim
definitely at each post.
},4
im
( .'
111!'' ;;i;
' : '' f.
■y\
jifll
m
i;'.lt^:
FouT IIali,.
1. It is to 1)0 noted tliat no uHort was nmde by Com-
pany to re-ocoupy tliis post at'tor its abiindonnient durini,^
tlio Indian war.
2. That tlici'o was no cultivated land there.
o. That the buildinn's were washed away by the river.
Aukenv. Saw Fort IFall in 184!>. Ado])e Buildinii-s.
— (U. S. Ev., pt. 1, p. 40.) Land worth government
price. — (p. 41.)
Meek. Thinks buildings at Fort lEaii cost 81,000.—
(U. S. I'A'., i>t. 1, p. GO.) Land about Fort Hall worth
$1.25 an aere. — \\). 67.) Finployees su[)portod by game
killed or bouglit from Indians. Game wys in great abun-
dance tiicre. — (p. 70.) Fort Ihdl was put uj) in two
months by ten or twelve Kanakas ; not sure whethei'the
inside was completed in that time. — (p. SO.) Fort Hall
built by men who irot $10 a year. Provisions were cheap
then. The Indians friendly. — (p. 82.) IJeaver were
scarce. — (p. 80.) Very little lumber about Fort Ifall. —
(p. 05.)
Tolmie. Fort Hall abandoned in 1850.— (p. 00.) The
Indian war of 1855 caused its abandonment, as introduc-
tion of ammunition forbidden by Governnicnt, I'.nd peo-
ple at post subsisted by hunting. — (p. 00.)
Gray. Buildings cost less than ,^250.- (U. S. Ev., pt.
1, It. lOa.)
C. 0. Hewitt. At Fort Hall in 1852. The officer in
charge said it would not pay to keep up the post, and
the Company was going to abandon it. — (p. 882.) In
1862 found no building of any kind standing, the river
had washed away the post. — {ib.)
11. II. Hewitt. In 18(!2 the bare remnants of an old
station. The post bad been washed away.
Nesmith. In 184o Fort Ilall a rude structure of adobe,
the buildings covered with poles and dirt, very cheaply
built. Tliinks, at the then juices of labor, Fort Hall
could hiivc been built forii^l.OOO. — (p. 27.) Saw no cul-
4:]J
pn
art
vH
rui
i.iiiiiyiiM'
"):j
Com-
(luriiig
0 nvor.
ildiiiii;^.
rnmoiit
[,000.—
1 worth
IV sjrame
at ubmi-
in two
'tlicrtlie
ort Hall
I re cheap
er were
t IlalL—
9.) The
mtroduc-
I'nd pco-
. Ev., pt.
ofHoer in
post, and
88-2.) In
the river
of an okl
> of adobe,
y cheaply
Fort Hall
w no ciil-
X
i
tivated lands there; the a<jcent in charLfe said tiiey raised
nothins:; there. — (//>.) Bnihlings withont tloors. — (p. 40.)
Nelson. ])r. MeLoiiii'hlin said Fort Hall hnilt hy
Wyi'th, an American, m 1834. to snjtply the tra])pers;
Tio farms there; 8 or 4 cows sent in 183(i \}y Company t(^
i(ive Indians. Land barren around. — (U. S. Ev., 2d i)t.,
p. 00.)
i\(lams. Eort Hall built of a(!iho. Estimates cost of
construction at $0,000. — (p. 118.) Saw no enclosed
ground for cultivation outside of the fort. — {ib.)
Sim[)son. Saw no cattle at Fort Hall in 18-5"). Com-
l)any had a few liorses tliere. — (j>. 201.) Land and build-
ings in 1802 worth about $0,000.— (p. 208.)
Gov. Gilpin. At Fort Hall in 1844. Post snudi
([Uadrangular post, adobe log cabins; buildings of little
value as structures; for mere temporary use. $2,000
would be a generous price for all structures at Fort
Hall. — (p. 381.) Xo cultivated la. ids; no enclosures but
temporar}' corrals with poles. About 300 or 350 head of
stock grazing around. The amount of trad" uncertain
and transient on account of migratory character of Indi-
ans about. — (?'/>.)
Howell. Country around in 1852 vacant. Immedi-
ately round the fort a sandy plain. — (p. 300.)
Geid. Granirer. In 1840 buildings old and decaved.
not worth more than quarter what it was when new. — (p.
379.) Land around utterly sterile, with exception of
river bottom and small stream called Portneuf. A patch
of acre and a half spaded up. Adobes cheaper than
wooden buildings.
Okanagan.
Auken}'. Was at post in 1859. — (U. S. Ev., pt. 1, p.
43.) Buildings going to rack, general waste around the
jiremises. — (p. 44.) Buildings worth $500. — [ib.) Land
around sandy and poor. — (ib.) Not valuable now as a
]ilace of trade. — (//'.) Buildings pretty much gone to
ruins. — (p. 53.)
^^:f
p ! iimr'
54
1*
1 .,
Tolniie. Company lias no white person at Okana^nn.
There may he an Indian chief in chariije. — (p. 91).)
Okaiia<;'an lost its importance after Cayuso war of 1H47-8.
The Comi>any liad to open a new ronte tlirough British
Cohinihia to Lower Fraser river, and Okanoijan was su-
l)erseded by new post at Simalkameen, situated a few
miles north of the line. — (p. 103.)
Kinearson. Keirards land as not valuable for agricul-
tural [)urposes. — ([>. 31G.)
Xelson. States Dr. McLoughlin as sayinu', Okanogan
a small post, receptacle for the boats; soil barren; small
garden.— (U. S. Ev., pt. 2d, p. 98.)
G. C. Gardner. In 1801 buildings in a dilapidated
condition. — (p. 195.) liemembers no enclosed land at
fort.— (//>.)
AV^ilkes. Okanagan situated on sandy rock. — (p. 284.)
AVilkes. Woil too poor for farming. In 1841 Com-
pany had some goats there, and thirty-five cattle. — (p.
28.5.)
Mowry. In 1853 buildings had depreciated 75 per
cent. Thinks ten men could have built the i)ost in three
months. — (p. 385.)
Gibbs. In 1853 Okanagan consisted of three small
houses, enclosed by stockade. No appearance of busi-
ness there. It was in state of perfect squalor. Did not
pay expenses. — (p. 407.)
Dr. Suckley. Twenty-five soldiers could build Fort
Okanogan in two days. — (p. 242.)
In 1854 no appearances of trade here. Post does not
probably pay expenses. — (Gov. Stevens' R., Miscellaneous
Ev., p. 222.) Estimates value of Okanagan, Kootenais,
Flatheads, and right of pasturage on Clark's Fork at
15,000.— (i6., 223.)
COLVILE.
Aukony was at Colvile in 1859-'GU. — (U. S. Ev., pt. 1,
p. 43.) Does not thiidc it has any importance as a boat
J '.
^
i
in
tiel
nit
thii
tivf
Sul
pa[
:>r>
[p. OU.)
f 1H4T-8.
was su-
5(1 a few
■ aji;ric
ul-
)kauo<?au
211 ; small
ilapulated
il land at
-(p. 284.)
1841 Coin- i
lattle.— (p.
ed 75 per
ast in throe
hrec small
ce of busi-
•. Did not
build Fort
)st does not
iscellaneous
^ Kootenais,
k's Fork at
S. Ev., pt. 1,
ce as a boat
landin*^, (|>. 41*,) or place of trade. — (//>.) It is an out-of-
the-way [dace. — {(/).} »)40 acres laud round Col vile worth
^'2.'>0 to $.') jier acre. — (p. 4-').)
Ap)>legate values iniprovemouts at ^8,800. — ()». 'JTO.)
Values land, exclusive of irnproveuients, at Si*,'>00. — (p.
277.) Attaches no value to it as a town site. — (p. 278.)
Values mill at $r)00.— (//>.) Values White Mud farm,
30 acres, at ^1.25 an acre. — (ih.) Would not sell the
water-power at mill for less than $r),()()0. — (p. 21»8.) Does
not consider Kettle Falls valuable as a water-jtower. — (p.
802.)
Rinearson adopts the re[>ort made by Api)Ieii:ate, Car-
son, and himself. — (p. 317.)
Carson adopts the reports of Api)legate, Kinearson, and
himself. — (p. 35G.)
G. C. Gardner identities photou'raph of Fort Colvile. —
(p. 195.)
Cain. Buildings in 1850 worth from 5 to $7,000 to
any one needing them at that point. — (p. 224.) Identi-
ties photograph of. — (p. 225.)
Mowry. Saw post in 1853. Buildings had depreciattid
in value 40 per cent. — (p. 384.)
Gibbs. Before 1853 goods were sent througli this post
to those north of the line, but that route was abandoned.
Behind the fort, and elevated above it about a hundred
feet, is a narrow valley, through which runs Mill or AVhite
Mud creek.
In this valley the discharged servants of Company set-
tled to the number of 15. In this valley is a cattle post
nine miles from fort, and a grist-mill of one pair of stones
three miles from fort. Oidy small portion of farm cul-
tivated in 1853.— (p. 405.)
The buildings occu[)ied by North Western Boundary
Survey at Fort Colvile were greatly superior to Com-
pany's buildings at Colvile. — (p. 400.)
Kettle Falls not valuable for manufacturing purposes.
-(p. 417.)
^It--I
Suc.'kle\'. Twonty-fivc soldiers couid build Fort Col-
onic [.. thirty <ltiys, or less. — (p. 541,)
Gov. StevenSj in 1854, estimates post and mill at
S25,00( , —(Gov. Stevens' K., Aliscellaneons Ev., p. 222.)
■■'m
KoOTENAIS.
Tolmie. Kootenais not now occupied, the Company
have a post north of the line in Kootenay. — (U. S. Ev.,
pt. 1, p. 08.) New post at Kootenais est.ablished because
a trail opened through British territory. — (p. 105.)
Nelson. Slates thatDr, McLoughlin said Kootenais a
mere winter trading post, no tarms, no cattle. — (U. S.
Ev., pt. 2, p. 98.)
G. C. Gardner. In 1860, ])assed some log houses,
which the Indians said was old Kootenais post. — (p. 102.)
Buildings dilapidated. — (p. 103.)
A. Gardner. Identifies photograph ot mission. — (p.
320.)
C. T. Gardner. In 1800, there was a log house and
shed in dila[>idated condition. — (p. 322.) About 40 acres
seemed to have been in cultivation. — (p. 323.)
Hudson. Kootenais consisted, in 1850, of a church, a
usvelling for man in charge, and three or lour smaller
buildings. — (p. 340.) liecognizes pliotograi)h of churcli,
the dwelling was similarly built, but much smaller. The
other buildings were inferior, and quite small. — (ih.) Saw
no one in charge. Saw no signs of cultivated land, or
stock.— (p. 340.)
Gibbs. In 18()0, there were only two small worthless
log cabins. Recognizes photograph of Catholic Mis-
sion.— (p. 407.)
Alden. Land around generally of a miserable ((UJiiity.
Four or five log huts. Tiie largest one a church. It was
e'upty, except some religious engravings, — (p. 552.) lie-
cognizes photograph of Catholic Mission, in evidence,
). 558.) Jiuildings looked very much dilapidated. — (p.
(1
I
li.
t(
P'
554.) Three axe-men could erect such a house as Lenk
57
)r
t Col-
mill at
p. 222.)
lompany
. S. Kv.,
because
5.)
otenais a
,— (IT. S.
• houses,
l(p. 192.)
sion. — (p.
lOUsc and
it 40 acres
cliurcli, a
ur smaller
[)f cliurcli,
Her. The
.[ib.) Saw
ad laud, or
I worthless
holi( Mis-
ble quality.
eh. It was
562.) Ke-
II evidence,
idated.— (p.
ise as Lenk-
later's in three days. — ([>. 554.) Saw no i>-(wd land on
tobacco plains, near Kootenais. — (p. 550.) Wlioie coun-
try graveled terrace. — (p. 560.) Jjenklatei''s house wiis
half the size of the church. — (p. 501.)
Flathhad.
Nelson. States Dr. McLoughlin said Flatheads used
only in winter to trade with Indians. — (U. S. Ev., 2d pt.,
p. 08.)
Adams. In 1851, buildings barely habitable. It
would have cost ^1,20U to rebuild them. — (j). 114.)
GONCLUSI-ON AS TO THE ToSTS.
We are now able, in contirmation of the views pre-
viously presented of the nature of the rights of the Hud-
son's Bay Company, of their value, and of the true mea-
sure of compensation, to refer intelligently, and with
appreciation of tacts, to further illustration of the true
nature of the claim of the Company to compensation.
1. The value of the possessory rights of the Company
is illustrated by the case of the Indians of Xorth America.
Chancellor Kent, with his accustomed clearness, thus
states the nature of their interest in the territory held by
Eu"opeans, and their descendants in America:
" The European nations which respectively estab-
lished colonies in America, assumed the ultimate dominion
t( be in themselves, and claimed the exclusive right to
grant a title to the soil, ,^uhied onh/ to the Indian riijld of
(H-cupanrij. The natives were admitted to be the rightful
occupants of the soil, with a legal as well as just claim
to retain possession of it, and to use it according to their
own discretion, though not to dispose of the soil at their
own will, except to the government claiming the right of
pre-emption.
Kent's Comm., vol. 8, ]). 461, sec. oTO.
Sec also Opinions of Attorneys (xeneral, vol. 8, p.
255, 338.
Hi
Tj.s
The Government possesses tlieexclnsive power ot'grant-
\u'j; the soil to individuals, subject only to tlie Indian
right of oceupancv.
Johnson v. Mcintosh, 8 Wheat., 548.
Mitchell V. Tlie United States, U J*et., 712.
United States v. Fernandez, 10 Pet., 303.
United States v. Kellienx' Heirs, 14 11, , 180.
Sparknian v. Porter, 1 Pa., 457.
The Indians liave onlv a riii'ht of use, wliich, however,
is divested by purchase or conquest.
Godfrey v. Beardsley, 2 McLean, 412.
From these authorities it appears that the Indians have
only a right of occupancy in lands, the fee being in the
Government.
The Indians have possessory rights of the iaigest pos-
sible extent, for their continuance is during tlie existence
of the tribal organization, unless sooner terminated by
treaty.
The right of occupancy may continue, therefore, during
the existence of the tribe. Hence, the Indians hold pos-
sessory rights in land of extensive duration. T>ut, though
their ]»ossessory rio-Jits mavthus continue so long in point
of time, there is no pretence that they are owners of the
fee.
The rights of the v. .apanyto land, in this case, are of
the same leyal character as those of the Indians. The Com-
pany were in permitted occujiancy, and were entitled to
the i-osscssory rights arising therefrom ; they had no claim
ot title to the fee of the land. They were, therefore, in the
legal predicament of the Indians in regard to tlieir lands.
Both the Company and the Indians were in the mere
occupation of land, the fee of tlie same being in the Gov-
ernment of the United States, the Coni[)any, just as the
Indians, })ossessing only the possessory riglits, at most,
which arise from lawful occupancy.
The material diiference between the legal status of the
Company and the Indians was in the duration of the
as
th(
tiej
unt
latl
ill
j-ig
th.f
■)0
grant-
Lndian
)WCVor,
ns hnvo
in the
ost pos-
)vistoncc
ated by
', (luring
lold pos-
, though
;in point
IS of the
iG, are of
Mie Coni-
itltled to
no eUiin\
.re, in the
eir lands,
the mere
thcGov-
st as the
at most,
tus of the
:)n of the
ocfupancv. And in tliis reu'urd the Indians have deci-
dedly the advantage, inasniucli as their riglit of occu-
pancy is of longer duration : it is during tlieir national
existence, uidess voluntarily relinquished by them to the
Government.
The duration of the Company's occupancy was limited
to the lawful continuance of their license of trade. When
that license terminated their right of occupancy ceased.
If etlbrt be made to claim for the Com])anv anv other
estate in land than the one we have assigned to it as an-
alogous with the Imlian title, then we sul»mit this pro[>o-
sition : the Company must either have such right of occu-
pancy limited, as we have stated it to be, or they possess
the whole estate in fee sim[»le.
That they have not the entire fee simple estate is too
clear for argument. Assuming, as a question conceded
in the case, that the Company ha\ e not a fee simple
estate, then they can have only such interest, that of the
right of occupancy, as we have assigned.
That this right of occupancy must be limited in point
of duration, bv the lei^al continuance of the license ot
trade, is clear, because unless so limited there is no limi-
tation to it, and it would be perpetual.
Hence, we think, the Indian title to land is instructive
as illustrating that occupancy of public land for the
longest period consistent with the idea of the fee re-
maining in the state.
And we fui'ther perceive that the Company is not in
as good a legal condition by virtue of their occupancy as
the Indians are, as the occu[tancy of each of these par-
ties confers during the occupancy similar possessory rights,
and by consequence f*imilar legal remedies for their vio-
lation, but the occupancy of the Indians may be lojiger
in point of duration, for the reasons we have already
given.
'2. We present another pertinent exain})Ie of })ossessorv
rights in the case of [»re-emi)tor, under the land law of
the I'liited State.-.
X
(iO
By the pro-cmption law of tlio United States any per-
son, beino; a citizen of the United States, or liaving given
notice of intention to become such, being an inhabitant
upon the public land, and having made a settlement and
erected a dwelling-house thereon, is entitled, upon giving
notice within a certain time, and paying the government
price, to receive a patent for 160 acres of land and thus
become the owner in fee simple.
From the time of settlement on the land to the end of
the twelve months, at which time the price of the land
must be paid, the settler, called the pre-eniptor, has all
the possessory rights and remedies which arise from the
lawful occupation of land, with the supperadded privi-
lege of purchasing the land in preference to all otlier
persons. — (See Lester's Land Laws, p. 855.)
Such is the legal status of a pre-em'piioner in general
under our law. Such is the manner in which the posses-
sory rights of a citizen of the United States in the public
land are respected, where he occupies such land without
})revious purchase.
In the State of Oregon and Torritorv of "Washington,
that is in the original Territory of Oregon, there was
special legislation.
Congress, on establishing the territorial government
of Oregon, passed an act which, ii. effect, gave legality
to certain inchoate titles acquired by settlers under the
previous provisional government of this Territory. It is
the donation act, so called, of September 27th, 1850. —
{V. S. Laws, vol. 0, p. 496.)
In virtue of this act a settle)-, subject to certain vow-
ditions of citizenship, was entitled to six hundred and
forvv-six acres of land if married, or three hundred ai>d
twenty if unmarried, on proof oi' four consecutive yeai's
<»f continued resideiice and occupation. — (See Stark v.
Starrs, 6 Wallace, 40:;{.)
This law does not either in terms or s])irit apply to the
Jiudsons Bay C''onii)any.
cei
8h[
of
pa^
SU(
O!
OI
no
toil
lis
61
Y pcr-
a:ivcn
bitant
it and
riving
iimeut
I thus
end of
e land
luis all
)m the
privi-
[ other
a^eneral
posses-
) public
A'ithout
lington,
ere was
Brnment
lesalitv
ider the
y. It is
'l850.--
ain y.-o\\-
Ired and
Irod ai\d
ivo years
Htark v.
ply to the
If elaiuiing any rights under it, the Company must of
course bo coniined to tlie limits of the statute as respects
the quantity of land. It could make no title under it
directly, [and if pretending to any, that could be reached
only by perjury and fraud, as the pretended title of the
Puget's Sound Agricultural Company, that is, by induc-
ing individuals to enter donation claims in tlieir own
names, but with secret engagement for the benefit of the
Company.
But this law, and the general law, are pertinent to show
what is meant by occupation, as the source of "posses-
sory rights."
Never, until in this case, was it pretended that cutting
timber on the public domain for sale, (that is, stealing it,)
or sutfering cattle to roam over thousands of acres of
unsettled public lands, (that is, wholesale trespass,) gave
the party title to such land.
Xor was it ever pretended, before now, that the occu-
pant possesses a fee simple.
The nature of his possessory rights is unmistakable.
He occupies, with right of purchase, on compliance with
certain conditions. If his inchoate right, as pre-emptor,
shall thus ripen into an absolute right, then he purchases
of the Government, at the statute price of the public
lands. If his inchoate right shall not so ripen, then, and
he abandon the land, all his rights, as against the United
JStates, are at an end. lie niay, indeed, sell his improve-
ments to a succeedinif settler, fallowinij!: him in the occu-
pation, but he can claim nothing ot" the Government for
such improvements.
Wiiat, then, is the value oi' the pre-emptor's interest':'
Obviously, only the worth of the improvements, in excess
of the statute price of th* land. I'he settler can pass
nothing else; he has nothing else to sell.
Suppose, now, that the (iovernment needs the land
ll)r public use. Is the Government to pay the sottler/or
((s own land:' Of course not. The Government will pay
62
.it.
for the improvements only, not for the fee. The occu-
pant has no fee. Tlie fee is still in the Government.
Let us apply these views to the claim of the Hudson's
13ay Company.
First, it is to bo noted that the treaty, in precisely the
same language, guarantees the i)osses8ory rights of "Brit-
ish subjects" to land in the territory, as it guarantees those
of the Hudson's Bay Company. Any individual being a
British subject, and in the lawful occupanc}' of land in
the territory, is entitled, l)y tlie treaty, to have his pos-
ses^sory rights in such land resj>ectc<l {»rccisely to the same
extent as those of the Hudsc^n's Bay Com[»any.
tSucli being the case, suppose an individual British
subject shoukl claim the benefit of the guarantee, to
wliat wouhl he be entitled?
Would he be entitled to anything uiore than to be put
on an e([ual footing with American citizens in the con-
temporaneous occupancy of land in the territory?
The American citizen, if in the occupauc}' of land in
the territory-, under the special pre-emption laws would
luive a lu'e-emptiou right to three hundred and twenty
acres, with the accompanying possessory riglits until the
patent issued, and this although he nuiy have been in the
occu{>«ncy of much more than three hundred and twenty
acres of land.
Woiuld the British subject in the same category be en-
titled, by virtue of the treaty, to have his possessory
righits respected to a larger extent than the American ?
Certainly not beyond the extent of the «|M»tation act.
The ti"taty provnles that his possessory lights shall be
respected, but it does not say in what manner or to what
extent tijey shall be respected. It in iiiccessary to con-
clude that the manner in whi'h titei*e rights are to be re-
spected is to be M\ to the discretion of the United Htates.
And it is sutHcient for the United Htittes to respect them
in the sMiiue manner it respects the possessory rights of
its own ctiizens under the csime cinumstances.
08
occu-
lt,
dsou's
3ly the
"Brit-
iS those
Dcing a
laud in
lis pos-
le same
British
itee, to
) be put
he con-
V
kind ill
5 would
I twenty
Autil the
ni in the
II twenty
i<y be eu-
.)ssessovy
iiierican 'i
\ uct,
Av,\\\ be
]• t>> what
y' to eon-
! to he re-
ed States,
lect them
rights of
The treaty would relieve the British subject from tlic
necessity of declaring his intention to become an Amer-
ican citizen in order to get the benefit of the pre-emption
laws, and there would bo no obstacle to his acquiring
title to the land occui)ied by liim to the extent of tliree
hundred and twenty acres. But he must i)ay for the land
if he seeks to acquire title from an occupation as pre-
emptor.
In reference to the })osscssory rights of the Company,
they would be as })Ossessory rights of precisely the same
character as those of the individual ])re-einptor by the
general law. But the Company would have no privilege
of pre-empting the land ; and in this respect there would
be a marked difference between the legal status of the
C'Ompany and the pre-emptiotier.
The possessory rights proper of the Company, the only
rights in reference to land the Comjtany ]»ossessed, would
be in (quality identical with those of the pre-emptor.
The difference would be in the duration of those rights.
In the case of the ordinary pre-emptor they continue
twelve months. The only question is, how long they
continue in the Company?
It is plain that they could continue in the Company
only so long as the Company should be in the lawful and
actual occupancy of the land claimed. And they are in
the lawful occupancy so long as the license of the Indian
trade continues, and the occupancy of the land is neces-
sary to their carrying on that trade, and no longer, as we
have already demonstrated.
Their possessory rights cease with their actual occu-
pancy. This is the settled rule of law in the case of pre-
emptions.
United States v. Stanley, 0 McLean, V. S. C. R ,
400.
This is manifest, because the Company's possessory
rights arise from occupancy. They spring from occu-
pancy, they perish with occupancy. Where, therefore.
■■ K,:f'.'
|ii:<i •'{>
,ti;
'.>'■'■-
<;4
the Company voluntarily abandon tlio occupancy of land,
their possessory rights in such abandoned land are at an
end.
In view of all vvliich, it is manifest that, as against tlic
United States, tlie Company has claim to compensation
only for the value of improvements. It can have no
sliadow (U* pretence of right to tlie laud as land until it
shall have paid the statute price thereof to the Govern-
ment.
And, if the Government is to take the improvements
oft its hands, and still retain the fee according to the
stipulations of treaty, liow preposterors it is for the Com-
pany to pretend that the Government, which has never
parted with the fee, shall itself pay to the Company the
value of its own public land.
In truth, this pretension of the Company, that com-
pensation to them for their "possessory rights " in the
land of the United States shall include the value of the land
as well as the improvements, exhibits a sublimity of impu-
dence, without parallel in tlie history of all the many ef-
forts of private claimants to impose upon and defraud the
Goverimient.
Ici
(C.) — Eight ov Tjiade.
I. The Company claim that their rights of trade have
been infringed. They construe their rights of trade to
include three items :
1. Indian trade.
2. General trade, other than with the Indians.
3. Right of cutting and exporting timber.
IE. It becomes important to ascertain what rights of
trade the Company had in this territory.
We insist that tie Company had no right to function
in this territory, except by virtue of the license of trade
granted to it in 1838. The original charter of the Con)-
pany limited its operations to the country around Baffin's
A
on
can
Ik
is ij
it t
An
Gr,
■ hind,
at an
ist the
isatiou
IV e no
mtil it
overn-
ements
to the
e Com-
s never
my the
it com-
' in the
the land
>f impu-
nany ef-
aud the
ade liave
trade to
rights of
function
of trade
the Com-
d Baffin's
Bay. In 1<S8(S tliu 0(>ni[>uiiy olitaint-d a spi-ciiil license
for exclusive trade witli llic Indians in tliis and otlior
territory on the Pacific, not enihraced in its original
charter.
We ask i-eference in this connection to the original
charter of the Coni[»any, and to the license to trade
granted to it in 1888.
From this original charter and this license to trade we
claim that, under the original charter, the Company was
confined in its o[)erations to the country aroun<l l>affin"s
Bay, and that its right to operate in this territory is de-
rived entirely and exclusivelv from its license of trade in
1888.
The acceptance of this license of trade is, we insist, a
conclusivt! estoi>[)el on the Company to pre\ent tham from
claiming a right to trade in this tei-ritorv hy virtue of
their original cliarter, independent of their license of
trade.
The husiness powers or functions of the Company in
this territory must, thereiore,he determined hy the privi-
leges conferred in the license of trade.
On reference to the license of trade it is found to con-
fer upon the Com[)any '^ the exclusive ])rivilege of trading
with the Indians." The license of trade has this extent,
no more.
The Conipau}' have no other power of trade than
their license of trade gives them. A corporation is
limited hy its charter, or grant, and cannot go heyond.
A corporation for the husiness of insurance cannot carry
on tlie husiness of hanking. A corporation for haidiing
cannot eno:ai2:e in manufacturinu*.
The general doctrine upon this point is stated in iVngell
lie Ames on Corporations, p. 238, as follows :
" A corporation in general can nudce no contract whicli
is not necessarv, either directlv or incidentallv, to enahle
it to answer that purpose," (the })urpose of its charter.)
And further, "a corporation can make no contract for-
')'';-
J:
1'^
ri'.
'< '■[' ■
:%
■ '■ "•'.I'
• i. ■'•;.■'
i' ''11
■ •uv
1 r4?'
bidden by its cbartcr." — [Ih.) A^j^'mw. In detcniiining
wbetlior a c*or[iorati(»ii can make a particular coutnict,
* * "wo arc to consider wbctlicr tlio contract is en-
tirely foreii^n to tliat jiurpose," (the purpose I'orwliich it
is cliartered.)
Reference is furtlier had to the lollowinii; adiudica-
tions :
A ujrant to a life insuran(;e and trust conipany "of a
power to buy and sell drafts and bills of exchange " does
not confer the power to issue paper desii^ned to circulate
as money.
In tJie matter of the Ohio Life Insurance Company,
9 Ohio II., 291.
Ducan v. Maryland Savings Institution 10 Gill k
Johns., (Md.) R., 2!»l».
New York Firemen's Insurance Co. v. Ely, 2 Cowen,
(N. Y.) R., 0(14.
Lane v. Bennett, 5 Conn. R., 574.
riiiladelphia Loan Conipany v. Towner et al., 13
Conn. R., 249.
So a corporation authorized for " the exclusive privi-
lege of trading with the Indians" cannot engage in
general trade.
Nor can they engage in the business of cutting and
exporting timber.
The only business the Hudson's Bay (.ompany could
lawfully conduct in this territory was the Indian trade,
and as a means necessary and proper to carry this on,
they could cultivate land and pasture it, and cut wood
for the purpose of keeping up their posts and employees
in the territory. Beyond this any general trading or
cutting and exporting of timber was nltra vires.
It is submitted, then, that the only business the Com-
pany could lawfully engage in in the territory was trading
with the Indians. Engaging in general trade, cutting
and exporting timber, were outside of their license of
trade, which was, in effect, the charter under which they
were actini>: in the territorv.
Iti
11
♦ iT
BetwoLMi u inoiv Indiiin trade, and llit' i^ciicral trade
"wliicli the Company asi»ired to with California, the yand-
wieli Island.s, and the Ilussian possessions in Anierieii
and tlie loeal vVnieriean trade, there is immense ditl'erenee.
Tiie Britisli (lovernment niiglit have l)een willinn' to
permit tiie mere Indian trade, and yet well hesitate hefore
estabiishini:; a new East India tradinij; company on the
shores of the Pacific.
Assnmino-, tlien, that the Company, so far as its <)jene-
ral business transactions are concerned in this territory,
must be confined to the specific privilege <i,Tanted in
its license of trade, tradin*:: with the Indians, then tlio
question arises whether the Company are i)rotected in this
riii-ht by the treaty of 1S4G, and if so, whether the United
States have done their duty in the premises?
It is sul)mitted, tliat the treaty i)rovidinjj!: tliat "tlio
possessory rights of the Company, * * in land or
otiier pi'operty," does not embrace the Company's right
of trade with the Indians.
" Possessory rights " arc rights growing out of the pos-
session of tangible property, real or personal. Before
•' possessor}' rights " can exist there must be possession
of proj)ert3-. There can be no possession except of that
which has physical existence. There can be no "posses-
sory rights " except of property which has physical ex-
istence, as hind, or a house, or a table, or something
wliicli has material substance. Trade is not a thing of
])hysical existence. It is impalpable, immaterial, ideal.
It is, therefore, not capable of actual possession in the
sense which gives rise to " possessor}- rights." One may
have possession of the house in which trade is carried on,
and possessory rights will arise as to the house, from such
possession, but one cannot have possession of the trade
carried on in the house, and " possessory rights " cannot
arise as to sucli trade. We insist, then, that the guaranty
of the treaty in regard to "possessory rights" does not
apply to the trade of the Company. This guaranty ap-
'1
>i- ■
^_
-r^:z
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0 If 1^ ^
1.1 1."^!^
L25 ||||.4 1.6
* *"
►
Photograph
Science£>
Corporation
33 WIST MAIN STRUT
WnSTM.N.Y. MSSO
(716) S72-4503
I J ■ ' .■ M
1 t
68
plies only to the visible property in the occupancy of tlie
Company. So far as their trade was concerned, it was
left to the general protection of the Constitution and laws
of the United States.
But whether we are right or wrong in our opinion that
the guaranty of the treaty in reference to the "possessory
rights of the Company" does not embrace their business
of trading with the Indians, yet we insist that the United
States have respected whatever right of trade the Com-
pany had with the Indians in as large a measure as was
obligatory on the United States.
We insist that after the treaty of 1846 the Company's
right to trade with the Indians was not to be ex r:"sed
as an exclusive trade with the Indians, as provided in
\, I their license of trade from the British Crown, but w'as
I to be exercised subject to the laws of the United States.
.' The Company, at the outside, could only claim to carry
on this trade on an equal footing with citizens of the
United States. The United States had a system of laws
in operation, in 1840, regulating intercourse with the
Indians. The Company's right to trade with the Indians
was to be exercised subject to these general laws, and
such other general laws as should be made by the United
States, not unjustly discriminating against the Company.
Tested by these principles, we submit that the right of
the Company to trade with the Indians was fully re-
spected by the United States.
The Company inake vague comi»laints on this subject.
1. They say Gov. Stevens, and Dart, the Sujterinten-
dcnt of Indian Afiairs, forbade the Compau}- to trade
with the Indians. But chief trader, McTavish, admits
the Company paid no attention to these orders.
So, therefore, the attempted prohibition amounted to
nothing.
But we submit these orders prohibiting Indian trade,
attributed to Gov. Stevens, were either lawful orders,
which it was c;tim[H'(c'nl to him to issue, as being in
(
69
Hibjoct.
riiiton-
I trade
admits
consonance with the general laws of the United States
in regulating the Indian trade, or they were unlawful
orders, and therefore of no legal effect, and the United
States are not responsible for them. ^
2. They complain of their trade with the Indians being
injured by the settlement of the country, and the cus-
tomary Indian wars. But in both these instances, we
submit, the legal maxim of damnum absque ivjuria will
apply.
The United States are not in any way responsible
for the diminution of the trade with the Indians from
these causes. The settlement of the country' was a nat-
ural and desirable result in the interests of civilization.
And it wouhl be more than the Company had right to
expect that this territory should continue indefinitely the
hunting ground of the Indians, when it was needed for
the use of civilized man.
As regards the Indian wars, they were unavoidable;
they were brought about without any default on the part
of the United States. Those wars caused a very large
expenditure of money to the United States, and but for
the execution of the power of the United States the "pos-
sessory rights" of the Companj' would have been of
scarcely appreciable value, and their buildings at Van-
couver and other points, upon which they place such
exhorbitant value, would have been consumed by the
Indians.
8. They complain of the Indians in certain localities
being placed upon reservations, whereby their trade in
furs was diminished. But this measure of policy, it is
submitted, was one entirel}' within the competency of
the United States as sovereign in the territory, and Justi-
fiable as a proper exercise of governmental discretion.
It can scarcely be maintained that the United States,
by agreeing to respect the "possessory rights" of the
Company, intended to abdicate the exercise of any of
their sovereign rights in relation to the Indian tribes
within their Juric^dietioii.
'M
^OBBHMHtll
m
i''j«.i "
■M^-
In every aspect, theu, in which the subject can be con-
sidered, it is submitted, that the Company have no
ground of complaint against the United States growing
out of the subject of the trade with the Indians.
On the subject of the general trade of thf Company
other than the Indian trade, it may not be inappropriate
to remark that there can be no pretence that the United
States, in any degree whatever, interfered with or placed
impediments in the way of such general trade.
On the contrary, the Company were left the largest
liberty in th's respect, and were free to exercise every
function of trade as untrammeled as any American cit-
izen or Araeri(!an corporation in the territory. On this
point there can be no just complaint against the United
States.
Indeed, it may more properly be said that the United
States, in permitting the Company to transform them-
selves from an association of fur traders to a vast mer-
cantile association, carried their forbearance to an im-
proper limit, as necessarily working injustice to their
own merchants.
i'.=;
L-rii'
(D.) — Navigation or the Columbia.
As regards the navigation of the river Columbia, and
any claim the Company may have thereto, it is submit-
ted—
1. That this matter is not within the jurisdiction of the
Honorable Commissioners in this case.
The treaty of Jul}^ 1st, 1863, authorizing the Honora-
ble Commission in this case, defines explicitly the juris-
diction of the Commission in the following terms :
" It is hereby agreed that the United States of America
audherBritannic Majesty shall * * * appoint each a
commissioner for the purpose of examining and deciding
upon all claims arising out of the provisions of the above
quoted (the 3d and 4th) articles of the treaty of June
lOth, 1846."
ot
it.
ot
qi
T
be con-
lave no
rrowiiig
ompauy
ropritite
Uiiitcd
r placed
3 largest
5e every
lean cit-
On this
3 United
) United
m tliem-
ast mer-
) an im-
to their
Libia, and
9 submit-
lon of the
) Houora-
the juris-
ms :
[ America
lint each a
1 deciding
the above
y of June
71
Tlie said 3d and 4th articles of the treaty of June 15tli,
184G, have no reference to tlie navigation of the river
('olunibia. That subject is provided for in the 2d article
of the treaty.
The jurisdiction of the Commission in this case is,
therefore, restricted to the matters arising out of the 3d
and 4th articles of the treat}', and does not embrace the
navigation of the Columbia.
It we are correct in this view, the question of the navi-
gation of the Columbia river is effectually disposed of, so
far as the present Commission is concerned.
An attempt is nuide in the Company's argument to
claim the navigation of the Columbia as a " possessory
right," embraced under the general provisions in refer-
ence to "possessory rights " in the 3d and 4th articles of
the treaty of 1846 ; but it is submitted, that those articles
have no reference to the right of navis-ation of the Co-
lumbia.
This, we consider, is manifest.
1. From the very terms of the 31 article, which pro-
vides that " the possessory rights of the Hudson's Bay
Company, * * who may be already in the occui)ation
of land or other property lawfully acquired within said
territory, shall be respected."
The term " possessory rights," as we comprehend it,
necessarily imports in this connection rights of posses-
sion growing out of the occupancy of land or other pro-
perty. The right of navigation is not, as we understand
it, a possessory right in this sense.
In order to understand what the "possessory rights "
of the Company might entitle them to in reference to the
right of navigation, we will, to put the case in the strong-
est light for the Company, suppose that they were the
owners in fee simple of the land at Vancouver, and such
other. points as they claimed along the river, and then in-
quire what their rights in reference to the river would be.
They would have such riparian rights therein, and the land
f|!.
72
■M'V}
to that extent under the water; and tlie water Howing over
would heloui^ to the riparian proprietor, subject to the
public easement of a right of navigation.
Angell on Water Courses, p. 597.
"Where the water course is not navigable, the riparian
proprietor is absolute owner of the land and water, and
may as proprietor have exclusive use of it in every form
in which it is capable of being used, subject to one limi-
tation, that he does not prejudice the proprietors Jibove
or below him.
From this brief summary of the law, it is evident that
the Company's " possessory rights " to land on the Co-
lumbia give them no right to the navigation of the Co-
lumbia distinct from the common right of every citizen
to navigate this common highwav.
The eflbrt to claim the right of navigation of the Co-
lumbia, as a "possessory right," has, it is submitted, no
basis whatever to rest upon.
What makes this view of the subject conclusive, is the
fact that this right of navigation is provided for specially
in a separate and distinct article, the 2d article of the
treaty.
The extent of riparian rights depend on the character
of the river.
If the river is navigable, it is not subject to private
ownership. The proprietor of the land on the river holds
only to the bank. The water of the river, and the ground
covered by water, are public domain.
Angell on Water Courses, p. 608.
In reference to a river of this character, the riparian
proprietor has no more right or i)rivilege than any other
person. He has no property or possessor}' right whatever
by reason of his ownership of the bank. Whatever privi-
lege he has in regard to the river, he owes it, not to his
being a riparian proprietor, but a citizen. If, then, the Co-
lumbia river at Vancouver is aflected by the tide, the
Company, if owners in fee, would have no property right
78
't :
g over
to tlie
pariau
21', and
V form
e limi-
abovo
lit that
he Co-
be Co-
citizeii
tbe Co-
tted, no
e, is tbe
pecially
of the
laractor
private
3r holds
sround
riparian
y other
hatever
er privi-
t to his
the Co-
ble, the
ty right
or riglft of any kind in tlio river doducible from proju-io-
torsliip of the ])nnk. Thoy would stand in regard to
water rights or privik'ges precisely on the same footing
as other inhabitants of the country.
If tlie " possessory riglits " of the Company had l)oen
supposed to cnd)race tlie right of navigation of the Colum-
bia, there would have been no use for the 2d article. The
insertion of a sjjocial article in reference to the naviga-
tion of the river, shows that the parties, wko framed the
treaty su}>posed this matter was not covered by the arti-
cle in regard to tbe [)ossessory rights of the Company.
The Company have never liad any particular right in
the rivers of the territory, other than such as they had in
the air and the light. They never posscisnl navigable
waters in the same sense that thay possessed land.
Further, to show that this right of navigation is a
matter not end)raced in the term " possessory rights" as
used in the treaty, it is proper to understand, with some
jtrecision, what is meant by article 2d, providing for the
navigation of the Columbia.
It does not mean merely the privilege of having the
personnel and the goods of the Company transported on
the same footing as citij^ens of the Uidted States. That
privilege, if not secured by prior existing treaties, would,
it is suhmitted, have been agreed on the principle of the
comity of nations, and certainly by the practice of the
United States in like cases.
But the privilege of navigation secured by the first
clause of the article to "the Hudson's Ihiy Company, and
all British subjects trading with the same," means some-
thing more. It means, as we conceive, that the Compa-
ny, and all British subjects trading with the same, may
navigate the Columbia in British vessels, officered ]^y
British officers, manned by British crews, and sailing
under the British flag.
Now it is ridiculous to claim that such a great ridit as
this can be claimed as a "possessory right" in perpetuity,
because of the occu[)aucy of laud in the territory.
10
^1:
74
"We assume, tlien, as a matter too clear for denial, that
tlie right of navigation of the Columbia is not one of
"the possessory riglits " of the Compaiiy secnrod by the
od article, and is a matter provided for by the 2d article,
and no other.
In regard to this right of navigation, embraced, as we
think, exclusively in the 3d article, we have but little
more to say.
1. We admit this right precisely as laid down in the
2d article, and we have no disposition to cii cum scribe it
in anj' degree. "We do not regard its rightful exercise by
the Company as of any detriment whatever to the United
States, and we hope the Company will indulge themselves
in the largest possible exercise of this great privilege.
2. We cannot refrain from expressing our gratification
at the great value which the Company find this right of
navigation to be to them, estimating it, as they do, at the
sum of $1,400,000, with the assurance that "the actual
value is much more at the present time, and its progres-
sive increase hereafter cannot be easily estimated." We
must be permitted, however, to express both regret and
surprise that a right so immensely valuable should, so far
as wo are informed, be in a condition of practical non-
user at the present time. It would seem eminently ex-
pedient that the Company should make the largest pos-
sible use of a right which they appreciate so very higlily.
3. AVe would further remark in this connection, that,
if the United States should ever desire to put an end to
this privilege of navigation, it would be properly a sub-
ject of negotiation between the two sovereign powers,
who are parties to the treaty, inasmuch as it is not merely
the Hudson's Bay Company who are to have this privi-
lege of navigation, but "all British subjects trading with
the same." And as the Company could only relinquish
this rii>;ht of navigation for themselves, and not for " all
British subjects," it would be impossible to make a satis-
factory negotiation with the Company alone.
that,
ud to
sub-
)wcr3,
iicvcly
privi-
jwith
qiiisli
" all
1, satis-
76
The Portagks.
There is nothing in the pretensions of the Company more
preposterous, extraordinary as most of them are, than the
claim of damages from the United States on the ground of the
alleged obstructions to the navigation of the Columbia, caused
by local improvements at the portages on that river.
Theae alleged obstructions consist in well-appointed rail-
roads in full operation, open to the use of the Company, as to
all others who choose to avail themselves of such facilities.
The railroads at these points, running in connection with
steamers on the river above and below the portages, render the
transportation of freight and passengers far more expeditious
and cheaper than under the old system of bateaus, with carriage
across the portages, which the Company had been accustomed
to in past times. That transportation on the Columbia is im-
proved by being done by steamboats and railroads is a propo-
sition so clear, as to be incapable of argument.
We had supposed, if any thing distinguishes the age in which
we live from the centuries preceding, it is its wonderful ma-
terial progress ; and one of the greatest glories of this progress,
the application of steam to land and water-carriage. But
this great achievement, which, if it has not abolished distance,
has in a large degree overcome it, does not seem to meet the
approval of the Company. They sigh for the old-fashioned
mode of stemming the current by human force, and carrying
the boats and tlicir freight on the heads of Indians around
the rapids of the river. Beinj?; so attached to this old system,
we are surprised that the Company does not still resort to it.
The United States have no objection whatever to their doing
so. And, according to the evidence, there is no obstacle in the
way of their so doing.
Cain, witness, says:
*' The portages on the Washington siJe of the Columbia
river have never been obstructed. I am not familiar with the
Oregon side, on the Lower Columbia; but the portages of the
Upper Columbia, on both sitlcs, both Oregon and Washinf^-
ton, have never been obstructed." (Evidence for U. S., Pt.
2, p. 240, answer 10.)
t.J-
TG
^('i;l.
"There is a wao;on road on each side of the river at the
Cascades. The one on the Washington side has always heen
a public highway. There is also a wagon road at the Dalles
portage, which is a public highway." [lb. p. 248, answer 2.)
Ho further says, the means of transportation across these
portages, for wagons or pack-animals, or for the backs of men,
are better than they were prior to the construction of the rail-
roads, [lb., p. 248, answer 3.)
Ainsworth, witness, says :
" There is a public trail and highway, that anyone can
travel, both at the Cascades and Dalles. (U. S. Ev., Vt. 1, p.
6, ans. 13.)
Even Mr. Mactavish, who, to say the least, is disposed to
look at matters in a sufficiently favorable, rose-colored, or,
rather gorgeously-purple, light for the Company, is driven
to abandon tbo portage complaint. He tcstlHes as follows :
Int. 885. " Had the Company ever been deprived of, or
abridged in, the use of the portages of tlic Columbia river?
"Ans. Not that I remember of." (U. S. Mis. Ev., p. 173,
ans. 885.)
So that the claim is in fact given up.
The course of examination of witnesses on the part of the
Company's counsel might induce one to suspect that they
meant to claim the portages as their property. Such claim
would be quite in keeping with other claims of theirs. They
set up title to vast regions of land, wheresoever they had cut
trees on the ground, or allowed cattle to wander wild in limit-
less waste. They claim exclusive rights of trade. The Co-
lumbia and all its affluents are theirs, according to their own
pretensions. Why should they not claim every highway in
the country, actual or possible, and every track ever traversed
by their servants and horses, or their tributary Indians? To
do so, would be entirely in the spirit of their grasping, rapa-
cious, exorbitant, and presumptuous character and conduct, as
exhibited in their general claims against the United States.
The Company seems to proceed on the hypothesis, that what-
ever, on the continent of America, it, or any of its factors,
agents, clerks, or servants, or its horses, cattle, sheep, or
dogs, ever used or abused, becomes its property thenceforth;
77
To
}cp,
or
and after advancing such claims, it might well now file an
amcndmont, claiming a sccoixl half million extra for the at-
mospheric air, and a third half Hullion extra for the sun light,
of Oregon and Washington. Its uniraaginablo ravenousness
passes the limits of indignation, and reaches the region of ridi-
cule and contempt.
(E.) — ]\IlS(KI,LAXEOUK PoiXTS.
/. — BemarlcH on Certain Witnesses.
The cour,-;e of the counsel of the Hudson's Bay Coin])nny jus-
tifies further coninient on a jtoint, heretofore touched, indeed,
namely, the character of the witnesses produced in hehalf of the
Coni])any.
Those who have been in the ( 'onipnny's service, though their
connection with it is at an end, may well be sup[)oscd to syni-
athizc very deej)ly with it, and to feel nud testify, therefore,
under a certain prejudice.
Those, who are still in the service of the Com])any, have, gen-
erally si)eaking, a direct pecuniary interest in the result. They
testify, theref'oj'e, to put nu)ney into their own [)0ckcts. The
evidence of these witnesses should be closely scrutini/e<l, to
say the least, and due allowance made for the bias on thoii- part.
We think it proper to cite the names of these witnesses.
1. — A\'itnesscs formerly in service of Company.
Thomas Lowe was a clerk in Company's service from 18-11 to
1850. Co.'s Ev.. ]). 7.
Sir James Douglas was in the service of the Com])any from
1821 to 1859. During the latter part of his service he was
chief factor. lb., p. 49.
H. F. Crate was in service of Com[)any, Avitli some intermis-
sion, from 1832 to 18G0. lb., p. 104.
Thomas Flctt generally in service of Company from 1833 to
1851. lb., p. 1G7.
Xeil McArthur was in service of Company ten years. lb.,
p. Gl.
N. McKinlay was a chief trader. lb., 72.
78
2. — Witnesses, in service of Company when cxauilned, or
pecuniarily interested.
Alexander C. Vnderson,
Was in (Jouipany', 8ervi(!C from 18.'U to 1851. From 18 46
to 18o I, was a chief trader. Since 1854 has not been in the
employment of the Company, but retains " a retrospective pecu-
niary interest." Co.'s Ev., p. 33.
This witness attests that the Coin])any's claim at Colvile, " in-
cludinjr White Mud pasturage and all, is from five to six
miles square, makiuj^ sixteen to twenty thousand acres, more or
less." lb., p. 30.
Values the cuHivablo land in the nei<^hborhood of the fort
at about fi^25 per acre ; estimates the cultivable land about the
fort at fifteen hundred acres, and back of the fort, in the vicinity
of White Mud at at least three tiiousand acres more. lb., 3G.
Values remahider of this land claim at $1 25 per acre. lb.,
p. 37.
Describes Comj)any's land at Okanagan : estimates the horse
range at Okanagan at fmn twenty-five lo thirty miles, "in
which the dilferent cnclosv.res were contained." Says certain
portions of it were very fine pasture, lb., p. 37. Values
land at Okanagan at $50,000. Values improvements and
land at Okanagan at X30,000. lb., p. 38.
Values the po.st at Colvile, including the White Mud and
the outposts of the Kootanais and Flatheads, at jC100,000, lb.,
p. 39.
(States extent of the pasture land at Vancouver. lb., p. 39.
Witness' interest is one eighty-fifth in the^fur-trade branch,
lb., p. 39.
Values Vancouver in 1852-'3 at £200,000. lb., p. 48.
William Charles,
Is a chief trader. lb., p. 171.
Asserts abandonment of W^alla- Walla and property there by
order of the United States Indian agent. lb., p. 173.
79
in-
liorse
H. A. Tuzo,
Is !i cliiof trndor. Th., p. 17G.
.I)o.«oril)(>s Coiupany's claim jit Vancouver. Ih., p. 17(5.
A'aliic.s tli(! hiiildiiin; at N'aiKiouvor. Ih., j). 177-S. Values
land at Vaneouvci-. I h., j). 171). Tlunks Company mij,dit have
realizod 8l,()()(),()0() by sale of town site at Vanccmvcr. lb.,
182. Thiidvs Company lost S40,0()<) or .So(),()0() per annum of
profit on sale of agricultural produce from two tliousand acres
of land at Vancouver, lb., p. 182.
Dugald ]\[aetavish,
Is chief factor. lb., p. 197.
Ilis interest is two eighty-fifths of forty one hundred parts of
the profits of the fur trade, lb., p. ";:.'i. " ,\Iy interest extends
to the whole amount of the claim of the Hudson's IVxy Com-
pany." lb., p. 222.
Mr. Maetavish is, perhaps, the most important of all the
Company's witnesses. His testimony is very extravagant for
the Company, especially in reference to the extent and value of
the claim at \"ancouver.
We have devoted already some space to Mr. :Mactavish,
but shall i)resently refer to him iji particular relations.
•I';
Angus McDouc'dd,
Is chief trader. Company's Ev., p. 150.
Describes Fort Hall.
Pasturage at along left side of Snake river for ciglitecn to
twenty miles, and extending southward about eleven miles,
lb., 152.
Says it would cost from seventy to one hundred and seventy
tliousand dollars to build Fort Hall. lb., p. 153. Would give
^1,000,000 for the claim at Fort Hall. lb. The enclosed
land at Fort Hall is worth 820 to 830 an acre. lb. These
lands increased in value every year since 184G. lb.
Hcscribes post at Boise, (lb.,) and ce,nsiders it equally valua-
ble as Fort Hall. lb. The enclosed land at Boise worth, when
-witness was there, $50 an acre ; now it is worth much more.
80
'I
'■1:.' ,J.'':I,
The uiioiH'.losccl land worth from Si 25 to $1 50 an acre, and
have iiicroasod in vahie shicc 184(1. Ih., 154.
A'ahics land at Walla- Walla. lb., ]). 155.
X'alnos the arable land at Colvilc at i^lO an acre, and tliat at
AVhite ;Mnd at the same. lb., IGO. Valnes the pasture land,
where hay is cut, at §5 an acre, the balance at $2 per acre. lb.,
8160. Values the mill at Col vile at $20,000. lb. Values
building at Colvile at from $70,000 to 8120,000. I b.
Thinks, if he bought Fort Hall at $1,000,000, he would got
his money back by turning it into a zoological park ! ! lb., p.
162.
John M. AVark,
Is a chief trader. lb., p. 189.
Testifies circumstances under which Company left Vancouver,
lb., p. 189.
3. It will thus be seen tiiat the Company have relied in a very
large degree, in the proof of their claim, on the evidence of per-
sons in their service, who have a direct pecuniary interest in the
result. If the evidence of tlicse witnesses were stricken out,
the Company would have but little to stand upon. It is sub-
mitted that, in comparing this evidence with the evidence of the
numerous witnesses introduced by the United States, ample
allowance should be made for the evident bias under which
the interested witnesses speak, as manifested l)y the monstrous-
ness and ilagitousncss of their extravagant estimations. Tlieir
falsehood is established by numerous witnesses produced on the
part of the United States.
This important fact, which we have just referred to, namely,
the effort of the Company to make out its case, especially on the
point of value of the various posts, in such a large degree, by
interested witnesses, receives vast additional signification,
when we remembei that the Company hav'c in their possession
the books of the various posts, which would show i)re(usely the
cost of each, at least so far as the items of materials and wases
are concerned, wnicli are indeed the only substantial items of
cost in the case.
That this conduct of the Company, in relying upon the bubble
81
and
bubble
te.stimony oPintorosteil witnesses to prove their (!ase, when they
persistently refuse to proJu(^c their books, must weij^h fatally
against thcMu, we cannot but assuin(>. In a ease before any
oourt of justice, in a suit between individuals, sucii conduct on
the part of the plaintilf would furuisii conclusive presunii)tioii
of bad faith, which, unexplained, would necessitate a verdict
for defendant.
4. The important ro?f performed by Factor ]N[actavish, as wit-
ness and agent of the Company, demands a special notice of his
testimony.
(a) Mr. Mactavish has been in the continuous service of tlic
Company since LSo-'i, rising from thu position of clerk to the high
dignity of chief factor. J)uring this long period of service y\v.
Mactavish has been located at v^arious and distant 2)oints in the
service of the Company. At one time we hear of him among the
frozen regions of IJalUn's Bay, next at the post of ^Eechipecoton
on Lake Superior, tlieu on the island of Montreal, in 18^19
hii crossed tiie Rocky ]\[ouutains, the next year he retraced his
steps to JJaltin's P>\y. We next hear of him at Vancouver,
.San Francisco, tlie Sandwich Islands, and Fnghind; and finally
he ap[)ears in Canada and this portion of the United States, for
the purj)ose, principally, as it seems, of supervising the prosecu-
tion of the Company's claim, and incidentally of giving evidence.
We have referred thus to Mr. ^Ia(!tavish's history, in order to
show the important position he occupied as an official in the
Company. (Jne so long in the service of the Company, trans-
ferred in his career from one locality to another so widely se]>a-
ratcd, and finally engaged in the most important matter which
this powerful Company now has pending, must occupy a very
distinguished position in the official ranks of the Company.
It IS fair to presume that no official of the Company of his
grade possesses a larger degree of its confidence, and is more
familiar with its history and oifleial acts, its j)urposes, wishes,
and clain'K, so far at least as this ease is concerned.
He may justly be considered in this case as the embodiment
of the Company, its type, and representative.
These circumstances give peculiar importance to his testi-
monv, and justify us in a closer scrutiny of it, than of the cvi-
11
82
I
dcnce of ordinary witnesses. When Mr. Maetavish is on the
stand it is in effect the Company in propria px^'^'^ono. AVlicn
]\Ir. J\[actavish speaks, it is the voice of tlic Company A^•c Jiear.
AVitli these remarks, \ve proceed to consider Mr. ]\L;ctavis]i's
testimony.
{/>) A\ hy Mr. Maetavish is here.
3 I
"Int. 114. Are you not really Iiere acting as client in this
case.
" Ans. I am here not as client, but as a chief factor of the Hud-
son's Bay Coni]>any.
"Int. 115. Arc you not here as an agent of that Company, to
look after their interest in this case ?
" Ans. I suppose I am.
"Int. IIG. Under whose directions or orders are you here?
" Ans. My orders come from the Hudson's l^ay J louse in Lon-
don.
"Int. 117. When did you receive those orders?
" xVns. I left London on the 28t]i of October, 18(54, previous to
which I received my orders ; since then I have occasionally had
communications with the house."
It will thus be seen that Mr. Maetavish is present during the
progress of this case, as the real representative of tlie (V)mj)any,
under direct orders from London. He sa)'s, in answer to Int.
104:
"My princij>al duty at present is in Washington, looking
after tlie proceedings going on before the Connnissioners in this
case
jj
In answer to Int. 105 he says :
" I did go from :Montreal to that place, (Charlotte, X. C.,)
and Avas present when Admiral AVilkes was examined."
In answer to Int. 110, "Have you not been ])resent, and have
you not desired to be present, at the examination of various other
witnesses of the United States in this case since January last," he
says :
" I have been present of my own desire."
Thus, when we consider the able counsel by whom the Com-
83
;• tho
my,
Int.
this
liavo
tlior
"ho
■}
pany were ropresoiitcd in the coiidiiet of this eau^sp, tlic voiy
gTwit ini[)ortaii('e, attached to ^Ii\ Mactavisii's services l)v the
Company, becomes inaiiit'est. Even in the matter of examinin*^
witnesses, it was deemed Important for ]Mr. Mactavish to he on
Jiand. ISo liicewise in the pre})aration of the memorial, Mr.
Mactavish's valnabk; services are called into re(j[nisition. On
being- asked (Int. 12-j) if lie did not assist the connsel in prepar-
ing the memorial, he says :
" I believe I tlid so." Miscellaneous evidence for the United
States, p. 05.
AVe propose now to point out some of the peculiarities of Mr.
Mactavish's testimony.
((;) In reference to the buildings at Vancouver, ho says, in
answer to Int. 5, first examination:
" In 184G, the establishment at Vancouver, with its out-build-
ings, was in very thorough order, having been lately nearly all
rebuilt." Company's Evidence, p. 200.
Again he says: " U]) to the time I left Vancouver in 18o8j
the buildings in the occupation of the Company were k(!pt in
thorough re])air." Jb., p. 201.
Upon this point other witnesses, with ample personal know-
ledge, of unim[)eachable character, and not swearing up a bogus
claim, positively c;ontradict and fully dis[)rove these statements
of ]Mr. Mactavish.
The Hon. Mr. Xesmith says! "As far back as 184'), the
buildings were becoming wrecked and <lilapidatcd on account of
the insuiliciency of the foundations." U. S. Evidence, part 2,
pa;
ire
23.
oni-
Lloyd Brooke, in 1849, speaks of several of the houses as
dilapidated. Speaking in reference! to 18()0, " I think there had
b^ien no repair-* on the buildings, and they had sulfered the usual
wear often or eleven years." lb., ])age 12i).
\V. ir. Gray, referring to a period substupient to 18.'}(), says:
" .Vll the old buildings were prop[»ed u[), and were in a miser-
able condition, lb., pagi! I(i4. Further, he s;iys, s])eaking of
sometime after 184(j, "the main house was in rather a sliaUy
condition." lb., page 181.
Lewis Love says, from 1850 to 1854, "the buiMings were
"i
' * .
84
getting- pretty okl from appeunmee. * "' Sojuo of tlie flooi's
were settling out of shape. * '^- The outMard a})pearan('e of
the buihlings hjoked as if they were going to deeay." 11),,
l)age 237.
Levi Douthet says, in 1853, "tlu* buildings looked very old;
tlie sills, 1 think, were inueh deeayed." II)., page 24G.
General Ingalls, speaking in referenee to iSdO, says the buihl-
ings were " very dilapidated." lb., page V>.
Colonel C. 13. AVagner, speaking of l«So7, says: "The build-
ings were old, and some were very nuieh dila[)idated." United
States Evidenee, part 2, page 50.
Major Chauncey MeKeever, referring to 1<S()0, says : "They
(the buildings) were all in a dilapidated eondition." lb., ]). 78.
Major General A. J. Smith, reilL-rring to LSOO, says the build-
ings "were very dilapidated; not habitable." lb., page 84.
Major Alfred Pleasanton, speaking in regard to the interval
of time from 1858 to 18(50, savs : "The whole establishment
was out of repair, dilapidated." lb., page l.')5.
Major General V. H. Sheridan says, referring to LS55-'50,
"the large, gloomy looking storehouses insid(> the pieket enclos-
ure were, I think, very old, * * and had the deeay of old
age." lb., page 207.
General lienjamin Alvord says: "In 1859, when the Com-
pany left, the buildings were most of them very much di]a[)i-
dated." lb., page 351.
George Gibbs says : " The buildings in and outside of the fort
were all old and considerably deeayed." lb., page 408.
So much upon this point.
((?) Mr. Maetavish says, Com])any's Evidence, ])age 212: "At
the diftercnt establishments, particularly at Eort Vanei)uver,
there were roads made at considerable outlay."
Wc caiuiot see how the roads at Vancouver should cost so
much, for the soil there is generally gravelly.
On this point Lloyd Brooke says, in reference to the roads at
Vancouver : " 1 know of no roads of the same character in
Oregon ; they arc better than the ordinary roads in ()reg<in on
which I have travelled, owing to the nature of the soil and line
85
JOIU-
api-
." fort
u
At
)St !?0
of tlio country. The roads Icadinji' to most of tlic plains l)t'foro-
nientlonod ])ass over oravolly soil."
Major Ja. ^fcFcrlv savs of the land around Vancouver, hack
of the stream : " It was not fertile, beinji' sandy and liravelly and
very dry durinji' the summer season." lb., ])a<;'e 121.
Afajor .Vli'red I'leasanton says the land around N'ancouver
was "uravelly and poor." lb., pau'c l.'UJ.
In short, without citinii' I'urther from the evidence, we may
assume, as a fact beyond dispute, that the land around N'ancouver
Mas sandy and ji'ravelly ; such bein<^ the fact, the cost of roads
could not have been nuich.
(r) Fiu'ther, ]Mr. Mactavish estimatesth(> valneof the establish-
ment at \'ancouver, with its outbuildin<;s, in 1S4(!, to the Com-
pany, at fr(»m $.'>()( ),(X)() to 8< )(»(),()()(,). Company's Kvi<U'nce,
paoe 200.
It is instructive to s(H' the value [)nt by other witnesses on this
establishment.
Ca])tain W . A. Howard says: "The buildinijs were rude
structures; made of the wood of tlie countrv ; built bv the com-
nion labor of the day ; I think $100,000 would be a larii'c allow-
ance for Ijuildinii; the fort and all its appurtenances. United
vStates Evidence, ])art 2, pau'c (u, Ans. 4.
C. Mclveever says, in l.S(jO, "I inspected the buildings in
June, 18()0; I considered the whoh; of them worth about
$1,000. United States Eviik'uee, part 2, pa.ue 7S, Ans. (>.
Major (ieneral Inu'alls savs he "could have built the Ibrt with
its stocka(k' and buildinu's, within three vears before 1(S4J), for
$.jO/)0()." Uiuted States Evidence, ])art 2, i)a,<.(> r>2<l, Ans. .■>.
"Thinks one hundred men, ten bcin^- skilled and the rest ordi-
narv, could hive built post nntstlv in the eourso of a vear. lb.,
l)a_<2,'e o.'>(), Ans. (J.
Chief Justice Xelson says, in relerence to this p^nt: "The
orij^inal cost I know nothinii' about, except as Dr. Mcliau<ihliu
toklme; he state I it cost about §100,000, all told; as to their
value in 18-V2 it is dilHcult for me to answer; they had, in my
judginent, outlived their day." United States Evidence, part 2,
pajre 80, Ans. 10.
*. i.
■ V'l
'} •■'■■
86
CM[)tiiiii C Ji. \Vn<rn(n' says in 1801 biiildinn; witliin stockado
not Avorth over $(j,0()(> or §8,000. Uniti'<l States Kvi<l('iU'C', [)ai't
2, i)a,u(' (]0.
Major (iciicral A. .J. Smith says in I8(j0 the valiU! of the
(^to('ka(l(! and hiiildiiijis to th(! (loveniincut woidd not ho over
$2 ")0 ; "they were ^'oiniL!; to decay ra[)idly; dry rot." United
States I'Aidence, ])ai't 2, ])a<>;e 84.
:\ra;)(»r Uohen McFeely says: "To the United States tlie
bnihliiiii's liad no vahie at all in J8()0, either as storehonsts or
lor (|nai'ters." United States Kvidenee, |)art 2, pai^e 111*, A lis. o.
Major (ieneral P. 11. Sherichin, reterrint;" to LSoo— 'oO, says:
" 1 can reeolleet very well that niy impressions at the time wen;
that it would he a ^ood thiiiu' if they (tlu! biiildin«>'s) would hnrn
<h>wn." 1 nited States Kvidenee, part 2, pane 28(5, Ans. 4.
T. \\. Peale does not think the erection of the hnildinns and
stockade eonhl have cost over !*>2"),0()0. United States Kvidenee,
])art 2, paiic ;>4(), Ans. 12.
(Jeiieral JJenjaniin Alvord estimates tlie valne ol' the stockade
and all tli" hnildiiius owned by the conij»any within the j)ickets
in ] 8o2 at about §25,000. United States Evidence, part 2, page
:Jol, Ans. (J.
AVithont ])nrsiiiiig this iioint any further, Ave may safely con-
clude that the testimony (»f Mr. Mactavish is not reconcilable
■with any hypothesis of common truth or good faith, and stands
Jiere in ])riiir to his dishonor as a gentleman and a man.
(_/") in his lirst examination ]Mr. Mactavis'i inibrms ns, "I never
had any particular charge of the farming ojieratioiis of the coni-
jiany. My particular work was \vith the books, but I rode about
and knew jiretty much what was going on." Company's Evi-
dence, page 22'), Ans. 11.
This declaration, mtide in the first step taken by him as a wit-
ness, gave hopc^ f(»r miicli valntible information ; but on his final
examinitioii Mr. ^[act:lvish, after a larger experience of the wit-
ness vocation, is inclined to take a much more modest view of
his capabilities for giving informtition. X^'ry much to our sur-
])rise, after the st;'k'ineut mad(! by him, to which we have
allndiHl, he infi)rms us, in answer to int. 41H), that " My
acipiaintauee with the lands used by the company arose siini)ly
87
stockado
iit'c, part
X) ol* the
Ix; f)vcr
United
ates the
loust's or
, Alls. ~).
•(), savs :
nic wvw.
idd hum
s. 4.
iiiji'.s and
iVidencc,
.st(K'l<adc
0 piclvc'ts
•t 2, page
fely ron-
oneilable
d .stands
L.
"I never
tlie coni-
)de about
ly'.s I']vi-
as a Nvit-
liis Jinal
'the wit-
; view of
our sur-
\vv, have
at "My
e simply
nMu ruhu,,. about at times; I hti.I no <.haru-e nhalev.r of th.^
Mrm.no- op.,atious of the .-ompany, so that I knew but li.th- as
toNvhat was gomu- ou upou the hu.,ls, in eo,„,.anso,. uith (ho
otheer or olluvrs in <.haro,. who ha.l that sp.vial d.Ltv iu .-l.ar.v "
_ Wiu^ther .Mr. Ma.-tavish's (irst n.nlidenee in his ju.au's of
inlormat.on, or his subsHpu-nt .lillidcnee upon the subject, i. the
best founded, we will not pr(>teu.l to say. Jt appears to us, how-
ever, not uulik(>ly, judnin. r,.,.u the character of his evi.h.uce
that lie did at the outset place, p.-rhaps, too hi^h an estiu.ate upon
the value of h,s information. ( )u th(> other baud, we incline to
tlie opinion that Mr. Ma.-tavish permitt,-d his .nodestv to hive
too orcat ])Iay towards the close of his exann-natiou. '
(V) As an illustration of this excessive luodcstv we would call
attention to some extracts from his testimony :
Int. U]:]. Was n,.t Dr. ArcLauuhlin cei.s.n-ed bv the Com-
pany's dn-eetorsfbr his kindness to American imminrants?
Alls. Jle never said so to jue.
Int. 014. J)o you not know that lie was?
Ans. 1 do not.
Int. 91 o. W'Jijit do you know about the matter?
Ans. I know nothino- further than I have said; 1 do not
know that I know anything' about it.
Int. 1)10. Did you ev.H- own any of the stock of the Puoct's
►Sound Agricultural Comi)anv? '"^
^viis. I believe I had two shares.
Int. 917. When did you come in possession of them?
Ans. Some time, I think, in the year LS;]9 or 1840.'
Jut. 918. Do you own them now?
Ans. I think so.
Int. 919. AVhat is their par value?
Ans. I do not know; I have no papers here to refer to • I
recollect nothing about them, except the fact that I have the tno
shares.
Int. 920. How much have you ever paid on them ?
Alls. I think I jiaid £10 a share.
Int. 9^1. Did you j)ay that iu the beginning?
Ans. I think so. I cannot say.
I
.1-
f
■%'■
}M-
88
Int. 922. Have yoii paid anythinj; on thorn since?
An.s. r do not rcnicniber to have done so.
Int. 1)2.'). Have you received any dividen<ls upon them?
Ans. I think so.
Int. 924. M'hen was your first dividend, and what was it?
^\ns. I do not recollect; it was some time a,<i"o.
Int. {125. When was your last dividend, and what was it?
.Vns. That I cannot answer, neither as to time or amount.
Int. 927. What was the capital stock of the Com[)any ?
Ans. 1 cannot say.
(A) In reference to the cattle, Mr. Mactavishsays : "There must
liive been a good many cattle lost in the winter, from time to
time." Co.'s Ev., p. 224, ans. 20. In the iinal examination
Mr Mactavish seems disposed to review and overrule his first
opinion on this ])oint. He says, in answer to —
Int. .')94, " Were not a a great many cattle lost in the winter
from time to time?"
" Ans. I don't know that there were absolutely many. U.
S. Miscellaneous Ev., p. 108.
Which of these statements is correct wc will not undertake to
say, but our impression is that the first statement is nearer the
truth of history, and we think Mr. Mactavish might have safely
stood upon it, without fear of contradiction.
(/) In iiis first examination, Mr. Mactavish says, in regard to
the eastern line:
"I think there was some boundary marked or blazed out for
a mile or two back from the river.
"(^ues. IG. Did you ever see any such marks or boundary
line?
" Ans. !My impression is that I have seen them, but I could
pot be positive, it is so long since I was there." Co.'s Ev., p.
In his final examination Mr. Mactavish savs :
" Int. 44-'>. Did you ever sec these blazes?
"Ans. I have some recollection of seeing them.
89
"liif. 111. Sliito all tliiit you distinctly rooollont nUout tlu-so
blazes.
" A us. r ri^t'i)llo!'t tlio ti'o's bltizotl tlioro about a mile inland,
t\w [!■('(>> were bln/cd licrc and thoro.
"Int. l-")(). I[()\v lonii" a distanco do yon think that you
renuMiibcr that you saw that the trees Avere blazed?
"Ans. l-'roni a (|uartov to half a, mile." U. S. Ev., ^Eiseol-
lancous, pp. 114, 115.
This evidence is curious as showinsj that memory may ')ecomo
more vivid with the llii::ht of time. When jNIr. ]\[aotavish was
first examined he could not be positive that he liad ever seen
the blazes on the tre;vs, "it was so lon<>; sin(!e," but in his last
examination, his nuMuoiy, from some unknown cause, had im-
j>roved, and he roniembored that the trees were really blazed
al)out a mile inland. IJut in the twinklim^ of an eye his mem-
ory aiiain became impaired, and ho only remenibor.s scoinj^ that
the trees were l>lazed from a ([uartcr to half a mile.
In deliuinti; the boundaries of the land at Vancouver, ]Mr.
Mactavish savs the lines runniny; inland from the river, run in
a northerly direction. Answer to Jut. 341, p. 99. Jilut immc-
diatelv on boinir shown the map of the surroundiny; couutrv, he
admits that he should have said the line running inland from
the mouth of the Cathlai)Ootle must run in an eastern direc-
tion. 1'his was a very important error, and does not impress
us with the witness' care in defining boundaries.
(/•) ]N[r. Mactavish says, in reference to Vancouver, in answer
to Int. (]{]•), U. S. ]\fis. E., ]). 145, " I don't know now what the
Comj^any's actual land claim there is."
This seems very strange, when m'C remember that the witness
is here as the representative of the Company. Further, on tiiis
2>oint, the witness says :
"Int. G54. Did vou, at the time vou wrote the letter referred
to in 'interrogatorv G47,' know the claim or claims to land on
the Columbia river, near Vancouver, made by the Hudson's
Bay Company.
" Ans. I was not aware what the claim was."
Again, he says, in answer to Int. 837, that he knows "only
12
00
' ' 'i !
ik'
m
by supposition" that the tract of land around Vancouver was
claimed l)y the Company Ix-fore 1840. T^. S. ]Mis. Kv., p. 99.
When he is asked, "Int. .'ioS. Why do you supjjose they (the
Company) claimed it (the land at Vancouver) before 1840,"
he says, " because the Company used and occupied the land."
Further:
"Int. I3.'}9. Have you any other reason for supposing- they
claimed it before 18G0."
Ans. Not that 1 remember of."
One of the chief factors, and one stationed at Vancouver, does
not remember havinjij any other reason for sujjposing that the
Conn)any claimed this land, e.\ce[)t that at one time they had
nse<l and occn[)ied it.
(l) There is one further statement of this witness to which we
would call attention. It is the answer to Int. 150.
"Int. 150. Do you mean to say that one hundred and fifty
engaged servants of the Company were employed for seven full
years, beginning with the autumn of the year 18.'i9, in making
permanent improvements at and around the post at Vancouver?
" Ans. There may have been a greater number sometimes and
fewer at others, but to the best of my knowledge and belief, I
think that number was so employed on an average one year to
another."
This statement is so extraordinary as to need no comment.
(m) Be it remeni bered, also, that all this peculiar evidence comes
from Mr. INIaciavish in the face of the suppression of the annals
of the Company, the existence of which is proved by himself,
which would have constituted the best and highest proof of cost
as an element of value ; and the non-appearance of which is so
extraordinary, Avhether imputable to the fault of the agents of
the Company to the prejudice of it, or the fault of the Company
to the prejudice of the United States.
III. Suppression of its Accounts ly the Company.
The Company present a very large claim against the United
States, which consists in considerable part of the assumed
cost and value of the buildings and various improvements at
the different posts named in the memorial.
91
luul
Jnited
sumed
nts at
This matter of the buildings and improvements at the posts
is made one of very great importance by tlie Company; as is
evident from the statement made by Mr. Mactavish, that one
hundred and fifty men were continuously employed at the one
post of Vancouver alone, iji the improvement of that place,
for seven years, from 1831> to 1M40, when the joint occupation
of the two Governments ceased.
In relation to the buildings, improvements, and other mat-
ters, it was therefore extremely important that the books of the
Company, especially the books setting forth the transactions
of each post, should be produced by the Company.
The production of these books should, it is to be presumed,
bo the very thing the Company should desire. Thus, the Com-
pany would have been able to approximate at least to the
amount expended by them for the buildings and improvements
at the different posts. Mr. Mactavish, says:
"During my connection with the place (Vancouver), then, I
suppose the outlay could be found in the local books of the
place, that is to say, the wages and material used for the build-
ings." (Ans. to Int. 39, U. S. Miscel. Ev., p. 52.) lie fur-
ther says, he thinks he has seen these books of wages paid to
servants for some of the years he was at Vancouver, and that
these books were in the Company's office at Victoria, [lb. p.
53.) lie further says, it was the custom carefully to preserve
all the books of the Company. Further, he states, that the
Vancouver books were taken to A'^ictoria. [lb. p. 54.
Yet, these books, so important to the Company, have never
been produced. One might have supposed that the Company
would make haste to produce their books, as showing, by
reference to them, facts, fixing beyond dispute the amount of
expenditure on the different posts. But though the Company
had it entirely in their power to produce these books, and thus
ad(i to the strength of their case; yet, strange to say, they
have not thought proper to do so, presenting at last only
abstracts of secondary matters.
Not only did the Company fail to produce their books vol-
untarily, but even under the pressure of an express demand
l«
02
h il
for their production by tlio United States, the Company have
not produced the books.
In reply to Mr. W. Carey Johnson, Dr. 'rolmie, represent-
ing the Company, says, under date of" April 15, 1(SG7:
"I have to acknowled„'e receipt of your letter, chited N'ic-
toria, April 11, IcSGT, applying, as you therein state, by diiec-
tior» of Mr. Cushing, for access to books, and information on
various points, far beyond "what, under my only instructions
on the subject from Mr. Day, of which you have received a
copy, I conceive myself authorized to furnish. I regret, there-
fore, that I cannot comply with your re(|ucst."
U. S. Miscellaneous Ev., p. 201.
That there were books shoAvirig the expenditures for im-
provements at the various posts, is evident from the evidence
of Mr. Mactavish previously cited.
That these books were preserved, and in poss' sion of the
Company, also appears from Mr. Mactavish's testi niy.
Such being the fact, why Avcre these books not produced,
on the demand of the United States?
It was the interest of the Company to produce these books
in the first instance, if they corroborated the statements of the
memorial. But it became especially incumbent on tin Com-
pany to produce the books, after the demand of the United
States, because failure to produce them could not but preju-
dice the Company's claim.
Take the case of an individual who is called upon to produce
his books, where it is known tliat entries are made throwing
light upon the matter of litigation ; and suppose he declines
to produce his books : — what inference is drawn ? The natural
inference is, that his books will benefit his adversary more
than himself.
The same inference must bo made against the Company in
this case. The Company, beyond all dispute, have possession
of the books. The books would show the expenditures made
on improvements. This information is one of the very matters
in controversy. Yet the Company, instead of producing the
books which would furnish us with facts, produces Mr. IMao-
books
of tho
Com-
uiteil
)V0Jll-
xluco
oWlIli'
liny 111
icssiou
made
lattevs
>; the
tuvisli, or Mr. Toliiiic, or Sir Jatnos D()U<^las, to testify from
mcmorv, witliout vouchors, as to' tlio cost ami value of tlitj
structures and other iinprovemcnts, including niills, behuig-
in^ to the CoMipany.
Tlic failure of the Oom[)any to produce their books is a fact
of great significance, involving all possible conclusions against
the Com|)any.
Indeed, by the statutes of the United States, non-produc-
tion of books by a party plaintiff subjects him to non-suit.
(Act of Sept. 24, 178!>, U. S. Laws, vol. 1, p. 82.) (See lasigi
I'. IJroAvn, 1 Curtis' (J. (J., 4(>1.) And e(|uity would coinpcd
production under similar penalty. (1 Greenf. Ev., by Jtedfield,
555-9, ajid «t'7.)
At various stages of the evidence, as well that of the
Hudson's Pay Company as that of the Unitc<l States, the (Jov-
ernment, it appears, made frequent efforts to obtain access to
the books of the Company.
We sought for them at Montreal ; and there we were referred
to London.
The claimant Company had repeatedly and urgently notified
the United States of its earnest desire to take evidence in Lon-
don : in consequence of which the Government, at considerable
expense, employed special counsel to attend to that object ;
but, when the time for action arrived, the Company backed
out, and trave notice that it did not intend to take anv te^ti-
mony in Great Britain. (U. S. ]Misc. Ev., \)\). 1-11.)
Hereupon, the United States took upon itself the disadvant-
age of itself calling on the Hudson's J3ay Company, and also
on the Puget's Sound Company, at the seat of their power, in
London, for the information which the ollieers of the Company
in America had refused or dec ined to furnish : thus ct)nvert-
ing the head oHicers of theComj anies themselves into witnesses
of the United States.
To be sure, the Government found it no easy task to discover
the liuhttat, or even the personality, of either Company.
We put upon the scent of the Companies one of the most
sagacious attorneys accessible to us, and he pursued the faint
traces of them, which he could discover, with eouuuendable
94
> • fiS
\
zeal and persistence, and all the keenness of perception of an
expert in such matters.
It appeared, at lengtli, tliat, in the task of hunting down
either of these Companies, the representative of the United
States was engaged in an expedition not less artiuous than
that of tlie adventurous Nova Scotian, who, in the innocence
of his heart, supposed that somewhere in England he might
discover the Mother Country.
jMr. Ilalvburton did at length detect tho Mother Country,
in the person of an old gentleman by the name of Stephens,
with a quill over his ear; and, in like manner, Mr. Clarence
Seward unearthed the Hudson's Bay Company, in the person
of another old gentleman with a quill over his ear, of the name
of Roberts, purporting to be the accountant ot" the Hudson's
Bay Company.
But Mr. Clarence Seward was not equally successful in
finding the Puget's Sound Agricultural Company : buing put
off. as to that Company, by reference to another old gentle-
man, with a quill over his ear, of the name of Armit ; and
this person, after all, seemed to be ''Ut a counterfeit present-
ment of the Puget's Sound Company, seeing that he was in
fact registrar of shares of the Hudson's Bay Company. We
submit, that here was a case of superfetation at least, if not of
false personation.
However this may be, the United States could get neither
from the accountant nor the registrar any satisfaction touch-
ing the facts under iuvestiijation.
If Mr. Roberts and Mr. Armit are to be believed, the Hud-
son's ]Jay Company, with its venerable age of two full cen-
turies, (the Puget's Sound Company docs not count, that being
still en ventre sa mere,) lives in torpid ignorance and super-
annuated unconsciousness of its own affairs, like a fossilized
image of incorporations : receiving cargoes from America
and transmitting cargoes from England; paying bills of ex-
change or remitting specie; and placidly receiving, or failing
to receive, dividends, at such times and of such amount as Mr.
Somebody, hidden somewhere in the great liyperborcan regions
of this continent, between the Atlantic and Pacific oceans.
n of an
^ down
United
IS tlian
tioccnco
e might
ountrv,
eplieiis,
/larcnco
! person
bo niuno
[udson's
!ssful in
L'ing put
gentle-
lit ; and
present-
was in
We
f not of
neither
touch-
ic
Ilud-
fiill cen-
ut being
d super-
ssilized
i\nierica
of ex-
failing
; as Mr.
ro<xioMS
oceans,
:,1'
05
mny condescend to dole out to the confiding stockholders in
London.
But of tlic necounts of the Company, the official accoujitant
himself knows nothing; that is a brunch of useful knowledge
not open to earjicst inquirers after trutli at tlie headquarters
and coroorato centre of the Hudson's Bay Company.
Who, then, docs possess this branch of valuable knowledge?
AVhy, forsooth. Dr. Tolmie, at Victoria, out of whom the
United States liad already labored in vain to extort the de-
sired information there; and Mr. jNIactavish, at Montreal,
who had in like manner disav^j-^'ed all knowledge on the sub-
ject, (U. S. ]Misc. Ev., p. ]").)
In this dileinina, the Government fell back once more on
Dr. Tolmie and Mr. Mactavish.
As to Dr. Tolmie, he was not ready or willing to say any-
thing; but, after undergoing severe pressure, he at length
did give to us a quantity of figures, of no importance; but
declined to give the important information required by the
United States. (U. S. Misc. Ev., p. 180.)
We then applied the screws of investigation to Mr. Macta-
vish a second time, and diligently labored with him night and
day, in season and out of season, in the pursuit of knowledge
under difficulties. From him we obtained most ample and sat-
isfactory proof, that he did not possess any definite knowledge
in regard to the material facts, which had constituted his oc-
cupatio!! as book-keeper, clerk, accountant, chief trader, and
represenfative agent, of the Hudson's ]Jay Company, from the
anno Domini of 1833 to that of 1867 inclusive, the date of
his second deposition at Washington ; although, when deposing
previously at Montreal, he knew everything with the positive-
ness of inspiration, (not divine, but of the Company's counsel.)
And, so it happened, that the long examination of Mr. Mac-
tavish at Washington, consisting of nearly one thousand ques-
tions and answers, occupying one hundred and forty-two pages
of reasonably-compact octavo print, wound up with the de-
plorable catastrophe, the result of the long-continued appli-
cation of the ^J6'//te forte et dare to a dumb witness, of the
I I hE
96
following expiring gasp, which is the last wc hoar of Mr.
Mactavish :
''^ Jilt. ^^f}2. Will you please produce here, for examination
by the United States or their counsel, all accounts, iiccount-
books, and letter-books of th.e Hudson's IJay C()ni[)any wliich
were kept at the various posts of that Company, south of the
49th parallel of uorth latitude, during their occupation by
the Company, together with the regulations under wliich their
books were kept, and the regular forms of contracts with the
Company's servants?
'•^ A. I cannot say wliethcr I will prodneo them or not."
Such is the melancholy Jinale of all the painstaking and
praiseworthy endeavors of the United States to extort from
the Hudson's T>ay Company, its olliccrs — great and small —
whether at the centre or anywhere between there and the cir-
cumference of their power — a single fact concerning its ex-
penditures on its various posts, on account of which, by means
of conjectures, suppositions, and opinions, it presumes to de-
mand millions of compensation from the United States.
Wc might, perhaps, have filed a bill of discovery in aid of
the ordinary course of inquiry by deposition ; but we shrank
from the waste of time and money involved in such a line of
action.
The Government now stands on its rights, legal and equita-
ble, and says to the honorable the Commissioners : These chum-
ants make out their case by being their own Avitnesses: they
have filled the record with their opinions and conjectures in
the place of facts; they obstinately refuse to communicate
the facts; they deliberately suppress the information which it
most imports the Commissioners to have; and you, the Com-
missioners, will judge these parties as tliey deserve to bo
judged: that is to say, you will, wo trust, reject their shame-
less claims, and pay no heed to the secondary and incompe-
tent evidence in their support placed before you, whether by
the Hudson's Bay Compan3^ or by its illegitimate and ficti-
tious offspring, the Piiget's Sound Agricultural Company.
IV. Testimony of Mr. Gihhs.
We are surprised at the violence of the attack of the Com-
pany's counsel on Mr. (libbs.
97
of Mr.
ination
ccoiuit-
' which
I of tlie
;ion by
i\\ their
fitU the
tr
nsj and
ivt from
small —
the cir-
T its cx-
y' means
3S to ile-
s.
n aid of
t shrank
I line of
cquita-
chiini-
: they
uros in
unicate
which it
c Com-
to be
shame-
compc-
thcr by
I ficti-
iny.
u
This testimony is not, as we conceive, so important as to
require sucli attack, because there is no material fact testified
by him which has not been proven by other witnesses. If
his testimony were struck out entirely, it would not alter the
result in the slightest degree. Mr. Gibbs has only stated
facts testified by others. It sometimes happens in a case,
that it turns entirely upon the evidence of a single witness.
Then it becomes essential for the party, against whom this
ic Com-
cvidence weighs, to destroy the witness, it possible, ilence,
in such case, Ave expect counsel to bring every possible force
to bear to accomplish tliis purpose. But in the instance of
Mr. Gibbs no such reason existed for a desperate assault upon
him.
The points attempted to be made against him are, wo think,
most signal failures.
The first exception taken to Mr. Gibbs goes back to 1850,
some seventeen vears before his testimony was ffiven, and
refers to his oilicial action as deputy collector of Astoria. It
appears that under date of March 10, 1850, Mr. Gibbs, as
deputy collector of Astoria, addressed a communication to P.
G. Ogdon, Esq., in which is found the following passage:
"In relation to the schooner 'Prince of Wales,' I am also
obliged to inform you, that slu must forthwith obtain a permit
from this office for the navigation of the river, and prove her
character and ownership according to law, and that hereafter
siio cannot be employed in any other than the actual service
of the Company, as (Icfined in the second article of the treaty
of Oregon, nor be allowed to navigate the Willamette river.
The instructions to tliis office and the requirements of law aro
on these subjects definite."
The first observation we would make on this extract is, that
the statement, "the instructions to this office '''■ '''' arc on
these subjects definite," must be taken as true, until counter-
evidence is introduced. No such counter-evidence having been
introduced, we are bound to take for granted, that such in-
structions were given. Such being the case, whether tho
instructions were right or wrong, the responsibility for thctn
does not rest on Mr. Gibbs, but on the Treasury Department
of the United States.
13
98
mm
■ lini.
\ >!:.;|.i'f ^
: mi
But, independently of the protection these instructions af-
ford Mr. Gibbs, on reference to the comniuniciition it is not
perceived tliat an}^ serious objectiou can be taken to it. If wo
"were hiying down instructions upon the subject now, tlic only
point, (upon which there would probably be any difference of
opinion) is, whether the Company's vessels could be employed
in any other than the actual service of the Company. Upon
all other points, the requisitions made by Mr. Gibbs seem en-
tirely proper. As to the navigation of the Willamette river
by the Company, there is certainly the gravest reasons to
doubt whether it is conceded by the treaty. Our construction
would be that it is not.
Upon this subject, ]SIr. Gibbs says :
"As regards the Prince of Wales, I have to say, * * I
acted in accordance with the requirements of the revenue laws,
and under the adviee of Mr. Ilolbrook, the United States dis-
trict attorney." (U. S. Ev., Pt. 2, p. 419, Ans. to Int. 48.)
An attempt is made to prejudice this proceeding on the
part of Mr. Gibbs, by supposing that he had an interest in a
rival steamer. But it does not appear from the evidence
that he had more than a temporary and contingent interest in
such vessel, from which he promptly withdrew.
It is clear there was nothing in the magnitude or certainty
of this interest calculated to improperly influence the official
action of Mr. Gibbs.
In considering this point, it must be remembered, injustice
to Mr. Gibbs, that he was acting as deputy collector, and, in
law, the action had by him was the action of his principal, the
collector-in-chief, General Adair. In the absence of any evi-
dence to the contrary, the presumption of law is, that Mr.
Gibbs merely obeyed the orders of his immediate superior,
General Adair, under whom he acted. It does not appear that
General Adair, in any degree, dissented from the letter of
his subordinate.
When we consider, further, that he acted under the advice
of the district attorney, Mr. Ilolbrook, the person specially
ap])ointcd by the law for that purpose, we cannot see that any
responsibility can attach to Mr. Gibbs in the premises.
09
ons af-
is not
If wc
ic only
enco of
iployed
Upon
3ein en-
te river
sons to
;ructiou
ue laws,
ites (lis-
;. 48.)
; on the
'cst in a
fevidcnco
crest in
•tainty
official
justice
and, in
)al, the
ny evi-
lat Mr.
ipcrior,
ar that
;ttcr of
advice
)ccially
lat any
It is not fair to Mr. Gibbs to judp;o him exclusivGly by his
action in rofcrcnco to tho Prince of Wales. His entire con-
duct should be considered as deputy collector, in regard to tho
Company. jNIr. Gibbs states: "I went beyond the law in af-
fonling faculties, which nothing but the necessities of tho
country would have justified." (U. S. Ev., Pt. 2, p. 419.)
This statement is uncontradicted; indeed, it is confirmed by
jNIr. Ogden's letter of March 2"), 18G0, to Mr. Gibbs, in which
he says: "Under these peculiar circumstances, I trust the
collector will extend to us the same privilcfjc he Jias alreaJi/
done with our ships, when, I trust, all the different forms, as
required by the United States Government, will be duly per-
formed ; and we feel no wish to cause any derangement in your
official rules and regulations which we can possibly avoid."
(Company's Ev., p. 399.) From this letter, it is clearly in-
ferable that Mr. Gibbs had gone out to the very end of the
law to extend "privilege" to the Company.
Tlie truth is, it was no easy matter to satisfy the Company.
They found it difTicult to play a subordinate part in a country,
where, in effect, they had exercised sovereign powers.
AVe call attention to the fact, as appears from the above-
cited letter of Mr. Ogdcn, that the Compnny protested against
the payment of duties on imports. It requires no argument
to show that, so far as the goods imported by the Company
were consumed or sold in the country, they were liable to
duties. The protest of tho Company on this point exhibits
the extravagance of their pretensions. It is much to the credit
of i\Ir. Gibbs's obliging disposition as an officer that, under
the circumstances, he was able to discharge his duties in such
an acceptable manner as to give the Company such very slight
ground of complaint.
The assumption in tho argument, that because of the letter
of the Secretary of State of the United States, some two years
afterwards, under date of April 8, 1852, ]Mr. Gibbs became
hostile to the Company, appears to be entirely gratuitous. It
is true the Secretary does speak of " the collector misappre-
hending the law." JiUt ^Nfr. Gibbs was not the collector. Tho
remark did not apply to him. And there was nothing in the
100
1
^Ki :
1
j^B -1
;fw
«i
|Hpi
wHb I
'■E^^D' ''
iVi
" ^;
remark to excite mortification, even on tlic part of the collector,
the person referred to by the Secretary of State. A collector
may possess all possible i .telligence and every virtue, and yet
misapprehend the law in a new case, under such a complicated
system as the custom-house regulations of the United States.
To suppose, then, that Mr. Gibbs became hostile to the Com-
pany from this trivial incident, is a violent and unreasonable
supposition, — a supposition which would not hold good in re-
gard to men generally, and is peculiarly unjustifiable in rcfi. -
ence to Mr. Gibbs, whose amiability of character, generosity
of nature, and freedom from the prejudice of narrow minds,
are signally and honorably conspicuous.
The next complaint against Mr. Gibbs is, that he became
clerk of the American Commissioner in this case. The argu-
ment of the Company seems to insinuate that iNIr. Gibbs, ac-
tuated by a settled hostility to the Company, obtained the
^situation of clerk, for the mere purpose of pursuing the Com-
pany with his hostility. Such a suggestion as this would be
more appropriate in a sensational romance than in real life.
In the case of Mr. Gibbs it is entirely out of place, and does
more credit to the imagination of the learned counsel who
prepared the argument, than to hisothjr intellectual faculties.
The naked fact of the case in this connection, stripped of
all rhetorical embellishment, is, that Mr. Gibbs, though one of
the clerks of the Commissioner, has taken some interest in
ascertaining what persons could give evidence in the case, and
what their evidence was, and giving this information to the
counsel for the United States.
It is not perceived, that there is anything improper in this
conduct on the part of Mr. Gibbs. lie was clerk to the Com-
missioner on the part of the United States, and another gentle-
man was clerk to the Commissioner on the part of Great Britain.
Each clerk had an equal right to inspection of the records,
and their proper verification. There is no pretence that Mr.
Gibbs has not discharged all the business acts required of him
as clerk. Upon this point no complaint is made. The objec-
tion is that Mr. Gibbs has gone outside of his sphere of ofl^i-
cial action, and aided in bringing evidence into the case. Mr.
101
in this
|e Com-
;cntle-
Iritain.
;cov(ls,
I at Mr.
lot' him
objcG-
•f oin-
Mr.
Gibbs's offence is in aiding to produce evidence. It is difficult
to see what is wrong in such a procedure.
The object of the Cominissio i was to receive evidence on the
subject of the Company's claims. Any citizen of the United
States, feeling a just interest in his country, if he had been
aware of the existence of competent evidence bearing on the
subject-mutter of investigation before this Commission, would
most unquestionably have been authorized, without being sub-
ject to the charge of ofliciousness, to communicate to the proper
representative of the United States the information in his
power. Indeed, his silence on the subject would not be the
full discharge of his civic duties. jNIr. Gibbs, by becoming
one of the clerks of this Commission, did not cease to be a citi-
zen of the Ignited States, and did not relieve himself from the
civic obliijations arising' out of that relation. He was as free
to take tlie interest he did in the case as any other citizen.
It is not pretended that he produced interested Avitnesses or
false evidence. The Company, if they were confident of the
merit of their claim, should desire the fullest possible investi-
gation, and, instead of complaining of ]Mr. Gibbs for throw-
ing light upon their case, should rather have been grateful to
him. Parties who have meritorious claims do not object to
the fullest consideration of them. They court scrutiny. It
is only those who have a bad claim, who fly from the light
and avoid investigation.
It must be remembered, in justice to Mr. Gibbs, that ho
was peculiarly situated in this matter. Jfe had lived in Wash-
ington Territory ; he had had intimate acquaintance with the
operations of the Company in that Territory; he had seen
many of tiieir posts; he had studied the country as a man of
science; he knew a great many people who had been living in
Washington Territory. Tn short, he possessed information in
regard to the Company, and in regard to witnesses, superior
to, perhaps, aiiy one in this part of the United States. Under
these circumstances, what was Mr. Gibbs to do? The Com-
pany were pressing an exorbitant claim before the Commission,
which he, in common with many otiier persons of intelligence,
uii^'iit well consider in the last dcfiree unconscionable. If he
102
&
(lid nothing, ho committed what he supposed was an injustice
to tlic Uiiiti'd States. Tiio path of dut}' scenicd to liini to bo
])hiin It was to inform the counsel for the United States of
the names of such persons as he knew were proper to be wit-
nesses in the case.
Objection is furtlier made that Mr. Gibbs prepared some of
of his own interrotratories. But when we consider the fact of
an intelligent witness, with abundance of leisure, and counsel
pressed with business engiigcments, we can readily understand
how this may, very properly, be done, for the mere purpose
of expediting matters. Every proper examination of witness-
es, produced by a party, pi'csupposes some knowledge of the
points to which the witness is to speak, to bo communicated
to counsel. This is usually done by previous conversation
of the counsel with the witness, and n^ :,ig the substarico
of his statement. Where the witness is intelli<xent, and
compr(;hends clearly the matter on which he is to be ex-
amined, there can be no objection to his preparing himself
the statement of facts with which he is familiar. This prepa-
ration may as well take the form of interrogatories as not.
As a matter of convenience, to save time, Mr. Gibbs, doubtless,
drew up the particular interrogatories referred to. If there
is nothing improper in the interrogatories, it matters but little
by whom they are prepared. And no exception is taken to tho
form of the interrogatories in this instance. It seems to us,
therefore, that the fact that they were prepared by Mr. Gibbs
iS a circumstance of no importance.
Mr. Mactavish states in his examination, (U. S. Miscella-
neous Ev., p. GO,) that the counsel for the Company gave him
questions, and that he then wrote oil his answers, returning
both questions and answers to the counsel, and further states,
that he may have consulted with his counsel about his answers.
He further testifies as follows :
" Int. 154. Did you not, at some time after your answers were
sent to Judge Day, alter them in consultation Avitli him, cither
by leaving out certain parts of them, or by adding to them ?
" Ans. I may have done so, but I have no recollection of it
now." (U. S. Ev. Mis., p. 70.)
108
ijustico
111 to bo
tatcs of
be "wit-
snine of
! fact of
counsel
crstaiid
purpose
witiiess-
13 of the
iiiicated
ersatiou
ibstancc
iiit, and
be cx-
biuiself
s pvepa-
as not.
)ubtiess,
f thero
ut little
n to the
s to us,
. Gibbs
iscella-
lave him
[turning
states,
Lnswers.
}rs were
1, cither
I em ?
)n of it
This mode of preparing a witness for examination would
fr
seem to estop the Company irom complaining oi a witness
)f
more
ly prop
)ariiifr his own intorrotratories.
Complaint is made, in connoctioii with Mr. Gibbs, that the
manuscript evidence has not been correctly printed. In refer-
ence to L. Brooke's evidence, it appears that the words " as
to" are printed, though they do not exist in the manuscript.
Tl
ns IS evK
Icntly
I mere error or tlie printer, and tloes not
I d(
alter the sense in the sli^jrhtest decree.
The argument continues: "And, on the same page, $1 per
acre is printed, instead of $100, which it ought to be." (Argu-
ment for Co., p. 167.) What shows conclusively that this was
a mere error of the printer, overlooked in the correction of tho
proof sheets, is the fact, that the statement made is in refer-
ence to ton acres of land purchased by General Ingalls in Van-
couver, which statement is printed correctly inGeneral Ingalls'
evidence, (Answer to Int. 20, U. S. Ev., Pt. 2, p. 7,) as follows:
"In 1800 I purchased some ten acres of land in Vancouver,
at what I considered the most eligible site on the river, ' A'
$1,000, and during the present year have sold it for tho
same." That is to say, the context indicated the error of
the printed price per acre, and no misapprehension was occa-
sioned by this error.
Such is the slender foundation upon which this complaint
rests. From this we may judge of the spirit with which Mr.
Gibbs has been pursued in this case.
The effort is evidently to punish him for being instrumental
in the production of important witnesses. His oifonce is not
so much, we imagine, i^' his own testimony, as in the testimony
brought into the case on his information.
We regret that the Company have thought it expedient to
Avatio such unrelontinij; war against Mr. Gibbs. llis si<ii;nal
probity is too well known to require any further defence at
our hands. His gifted intellect, his scholarly attainments, his
devotion to scientific pursuits, his generosity of character,
command for him the respect and esteem of all who know him.*
*Iu the >>upiilL'uifUt and Ajijieudix I'ur tho UniieJ tJlales, it will bu shown
under what cirouuistancod and nnpul^es of duty he acted, so as eompletely to
vindicate him from all iuiputatiou in the premises.
104
V. Motion of the Comjmni/ hi amendment of ita Memorial.
Riiicc the filln;; of the inoiiioriiil, the Compiiiiy liavc moved
to amoinl, so as to increase tiieauiount claimed by them in the
sum of.S4r)9,900.
The original amount claimed in the memorial is !?3,8:i2,0o()
67. The total amount now claimed under the amendment is,
$4,281,030. Of this increased amount of ,^4.")'.), 000, the sum
of 8418, GOO (!)G is set down for the land at Vancouver.
The reason of the proposed increase is stated in the motion
to amend to be, "because it appears by the evidence of re-
cord, that the lands claimed by the Hudson's Bay Company
at each of the posts of A^ancouver ;).nd Colvile, greatly ex-
ceed in value the respective amounts stated and claimed for
them in the memorial." (Argumei.t for Company, p. 1.").)
The motion comes in long after the close of the evidence
on both sides. We deny the right of the Company to file
such a motion at such a time. We protest against it as too
late. AVe insist that, if received, it shall be regarded as re-
opening the whole case for additional evidence. The United
States can and will, \i permitted, produce much and conclusive
additional evidence to the falsity of the new claims of the
Company.
It is generally presumed that a party states his own claim
with sullicient liberality. At any rate, such is the ordinary
experience in business transactions. The bias of interest is
generally sufficiently operative to insure this result.
Where, therefore, a party, after ample time, as in this case,
and elaborate preparation, fixes his own claim, a subsequent
departure from his own estimate is calculated at least to
awaken surprise; ordinarily it would tend to excite a certain
degree of prejudice against the claim, as being vague and
speculative. In the case of the Company, where, by their
elaborate system of accounts, and the able officials employed
by them, the greatest possible precision and accuracy in all
business transactions may readily be arrived at, it seems the
more inexcusable that, in the progress of the case, there should
lO.-)
\orial.
mo veil
ii in the
mcnt is,
;he sum
! motion
e of ro-
ompany
atly ex-
itncd for
1.3.)
2viilonco
' to file
it as too
0(1 as re-
united
nclusive
of the
n claim
rdinary
crest is
kis case,
[sequent
least to
certain
Hue and
|y their
iployed
in all
mis the
should
be a necessity of opening the amount of the claim and lar^^ely
incrcdsniu it.
Th
if:
iblc
th
duccd
d.,
lie uiitavoraoie impression tlius i)ro(lucca is aeei)ene(ij
when we consider that this ])roposed increase is almost entirely
sot down to a single item, — the land at one post, Vancouver.
The pro[)osed increase in this one item is ^41.3,000 GO. If
the proposed increase had been spread over numerous items
of the claim, it would not have been so striking. But it is
applied in chief to the single item of land at Vancouver. One
would have supposed that the value of the land at Vancouver
might have been approximated in the j)reparatory estimate
nearer than .^41.3,G(jG 00. It appears from Mr. Mactavish's
evidence that he proposed a higher valuation on Vancouver
than was placed on it in the memorial. But this higlior esti-
mate was rejected on doubtless the most mature consideration.
The subsequent motion to amend, therefore, from considera-
tion of this fact, creates the more astonishment and suspicion.
The increased estimate is brought about by the fact that
the Company's witnesses value the lands at Vancouver and
Colvile at a far higher rate than the Company did.
The natural effect of the witnesses assigning a far higher
value on lands at Vancouver and Colvile than the Company
did, is, that such higher valuation excites suspicion as to the
value of the evidence. It gives the impression that the wit-
nesses are extravagant in their estimates. In short, it im-
pairs our confidence in the reliability of the witnesses.
Either the original estimate of the Company or the subse-
quent estimate of the witnesses is erroneous. lioth cannot bo
correct. And the difference is so large, $413,000 00, in regard
to the one item of land at a single post, that this error can-
not be considered as immaterial. It is too great and important
an error to be so treated. The error is vital. It reflects on
the Company, — on the witnesses. We might well think the
Company are nearer the truth than the witnesses, because
the ordinary principles operative on human nature arc almost
certain to cause a party to value his claim high enough ; and
we must therefore suppose that the Company did sq in this
case.
14
lOfi
• 'in
:m
\
%■■.,
t
^■if
<i ' ,
1
>• m'
A'.- >
i'v
it
'] .
i-
Si'*f ■'
f
f~ '
^fi?1
|i
j^^ll
■'
nniiw
i-i
^pB
H
This extraordinary spectacle of the witnesses in a case going
beyond the principal in fixing the amount of the recovery,
fives great force to tlic objections to the principal evidence for
Jie Company, as coming from interested witnesses, — olficers
and employes of the Company. And we arc forcibly admon-
ished of the necessity of scrutinizing the evidence on behalf
of the Company with the most suspicious caution.
VI. The Compaiv/s oivn estimation of its value.
The Companies have themselves, at various times, ra^ i and
fixed the value of their various claims, at a sum, wnich re-
flects most disparagingly on their present pretensions.
Thus, in 1860, they offered, through their Government, to
accept $500,000 in full satisfaction of all their claims, in-
cluding the navigation of the Columbia river.
But this offer is not the only occasion in which the Compa-
nies have exhibited their own estimate of the value of their
claims. They have done it at other times, and in other forms,
in memorable contrast Avith the attitude in which they now
stand.
Thus, in 1852, Sir George Simpson, speaking for the Com-
panies, offers to dispose of all their rights for $1,000,000,
although he pretends that this is less than half their value.
He does not profess that it is less than onc-Jifth of their value.
(U. S. Misc. Ev., p. 280.)
Lord Lyons to Gen. Cass, December 10th, 1860, United
States Evidence, Mi?nellaneous, p. 284.
In this despatch. Lord Lyons says:
"I am accordingly instructed to state to you, sir, that, if
the United States Government will agree to pay to the Hud-
son's Bay andPuget's Sound Companies a sum of five hundred
thousand dollars, ($500,000,) in extinction of all their claims
against the United States, under the treaty of June 15, 1846,
her majesty's Government will be prepared to accept that
amount in behalf of the two Companies, and to release the
United States Government from all further liability, so far as
regards their engagements to Great Britain, under the third
and fourth articles of that treaty, in behalf of the Hudson's
107
3 going
jovcry,
nco for
oiricers
idinon-
behalf
^ i and
lich re-
lent, to
ms, in-
Compa-
3f their
[• forms,
ley now
le Com-
00,000,
value.
r value.
United
[that, if
e Ilud-
lundred
claims
1846,
)t that
ise the
far as
third
idsoa's
Bay and Pugot's Sound Companies in Oregon, whether on ac-
count of land and buildings, or on account of privileges men
tionod in the aforesaid articles."
It will be noted that this proposition comes direct from the
British Government to the Government of the United States.
It shows the estimate the British Government placed on the
;li
th(
claims of the Companies. While it is conclusive upon ine
British Government, the party to the treaty of 184G, it is also
conclusive upon the Companies; because the Companies, hav-
ing placed their claims in the care of the British Government,
were bound by the action of such Government. Besides, it is
not to be supposed that the British Government would have
volunteered an estimate of the Companies claims, the Govern-
ment must necessarily have received this estimate from the
Com panics.
We submit, that this proposition of the British Government,
to receive $500,000 in full satisfaction of all the claims of
both Companies, is conclusive upon the Companies, and is a
moral estoppel against their claiming a larger sum now
The companies may recover less than $500,000; but, by theii
own action, they are precluded from claiming more.
This action on the part of the Companies, as we conceive
is entitled to a great deal more significance, as being a clainr.
against a great Government, than in the case of an individua
proposing to settle his claim against another individual. An
individual may offer to take less than he thinks he is entitled
to, because ho may be distrustful of the integrity or ability
of his debtor. But no such motive could exist in this case.
The integrity of the United States, as also its ability to pay,
was above all exception. Nothing, therefore, can be im-
agined more improbable than that a company so sagaciously
managed as this Company is, having a valid claim against r
party so eminently responsible as the Government of the
United States, would voluntarily abate its claim of $4,281,036,
and that of its excrescence, the Puget's Sound Company, for
$1,168,000 00, and propose to receive .-$500,000 in full satis-
faction of both claims, unless it well knew that the lessei
II
108
sum it propose! to receive is all to which it was justly
ertitlc(L
The eminent counsel for the Company sees the immense
moral efFect of this transaction, and he puts forth all his
ability in advance to break its force. It is unnecessary to
follow him in his iufjenious ar^uraent. There stands the
great fact: the seal cannot be rubbed off the bond. That
fact speaks a language so potential, that we leave it to certify
for itself; satisfied that no force of professional intellect can
fritter away its strength.
In showing that the British Government in 1860 deemed
the aggregate claim of the two Companies as of the value of
only $500,000, we present but a very small part of the facts
bearing on this most important and vital question. We pro-
ceed to show that in the offer of $500,000, made in the year
1860, the British Government acted advisedly, and did ample
justice to the real claims of the two Companies.
The question of the rights of the Companies had just under-
gone thorough examination, on the part both of the Govern-
ment and of Parliament. In the sequel we shall show what
and how much cause there was for this investifjation.
In the course of that investigation, the committee of the
House of Commons called on the Hudson's Bay Company for
an exhibit of its financial condition.
The Company responded with a statement, which we abridge
as follows :
e s. a.
Stork in the name of proprietors 500,000
iianda and buildings, exclusive of Vancouver's Island and
Oregon .^ 31S,SSl 12 S
Advanced for various ohjects at Vancouver's Island 87,071 y 3
Amount invested in Victoria and otiier posts on Vi^ncouvcr'a
Island 7.'3,000
Paid the Earl of j^elkirk Sl,lll 18 5
" I'rojierty and investments" in Oregon, secured to the Com-
pany as " possessory ri^lils " bytr^, ty with the United States,
say, >;i,000,000 200,0(t0
Total capital £1,265,007 19 4
Pari. Rep. on Hudson's B. Co., p. 449, Ap. No. 18.
We perceive, in this exhibit, the commencement of dccop-
tion on the part of the Company.
109
s. a.
,1 18 5
)0
Ft 10 i
IS.
lU' cop-
Ill tlie first place, they put down the ■whole capital at the
loAv sum of about a million and a quarter pounds, which, as
wo shall presently see, is an under-estimatc of the miscellan-
eous assets which the Company really possessed, indepondcnt
of its territorial ri<^hts within its chartered limits on Jjallin's
Bay.
Secondly, in this exhibit the Company cxagf^erates its claim
against the Uniteil (States, stating it at $1,000,000, which claim
at a time rtmch nearer to its inception, and when the structures
of the Company were in a better condition, the Company,
through its governor. Sir John Pelly, estimated at only
8700,000. (U. S. Misc., p. 240.)
We perfectly understand how, in this exhibit, the sum of
$1,000,000 is stated as the amount of the claim against the
United States; for that is the sum to which the claim was
forced up by Sir George Simpson, when he appeared at Wash-
ington, December o, 1852, and put this matter into the clauii
market, taking care, of course, to demand such amount as
should leave ample room for abatement by the Government,
and, even after that, have a spacious margin left for the benefit
of Mr. George M. Saunders and his associates, wlio were, it
appears, engaged to state this claim in the State Department
and before Congress. Compare the confidential letter of Sir
George Simpson to Mr. George M. Saunders, and the "memo-
randum of the, >«ame person with reference to the Hudson's
Bay Company iiid Puget's Sound Company's possessory rights
in Oregon." U. S. Misc. Ev., pp. 241, 250.-
Sir George Simpson means to wear the appearance of exact-
ness ; for he files a bill of particulars. We pray the Commis-
sioners to scrutinize this bill of particulars, and compare it
with Mk- present estimate of the Company.
And yet it is manifest that tiie estimates there presented
were intended only as a i^how, in the expectation of some
smaller sum being offered in return by the United States.
We now propose to call attention to certain circumstances,
which took place when, in July, 18(3'j, the whole interests of the
Hudson's Bay Company wore transferred to Mr. Edward W.
Watkin, and cr tain gentlemen acting with him, and Srir
110
I
I
('•M
I
^I
■ > •-■■[ ■ J
' *.■:''' ■'
Edmund Head was elected Governor of the Company. (U. S.
Mis. Ev., p. 336.)
The stock of the Company previous to this transfer was
nominally iJ500,000, but it rated on the London stock ex-
chantT-e at double that sum. The market value of the Com-
pany was therefore <£1. 000,000. The new society paid
XI, 500,000 for the transfer to them of the entire interests of
the Company.
The parties to whom the transfer was made seem to have
organized themselves under the name of " The International
Financial Society," and thus, by a sort of transmigration of
soul, or metempsychosis, the IludsoJi's Bay Company shuffles
off its mortal coil, and reappears as " The International Fi .a,i-
cial Society." S'fat nominis umbra.
The prospectus issued on behalf of tiie " Financial Com-
pany," to induce subscriptions to the new issue of stock which
followed upon this, states the resources of the Company as
follows:
1. The assets (exclusive of Nos. 2 and 3) of the Hudson's
Bay Company, recently and specially valued by competent
valuers at .4^1. 023,560.
2. The landed territory of the Company, held under their
charter, and which extends over an estimated area of more
than 1,400,000 square miles, or upwards of 806,000,000 acres.
3. A cash balance of £370,000. (U. S. Ev. Mis., p. 21.)
Mr. Armit, registrar of shares in the Hudson's Bay Com-
pany, says: "I do not know what assets were included in tlie
paragraph numbered one of the prospectus." Such paragraph
was supposed to include all the property of the Company, ex-
cept as therein excepted. {lb., p. 18.)
Further, Mr. Armit says: "I do not know how the sum
mentioned in paragraph one was arrived at, nor any of the
details of which it was composed. (lb.)
It seems strange that Mr. Armit, occupying the official
position he does in the Company, should be so ignorant as he
seems to bo on a matter of so much importance, and about
which the information should bo so clear. The Coip.pany,
proposing to issue s'.ock upon a valuation of £:i,000,OQ'?, issues
Ill
jr their
more
acres.
21.)
Coin-
in the
graph
ly, ex-
le sum
lof the
lofRcial
as he
about
Ipany,
■ssues
its prospectus, stating its assets, ^A'ith certain namctl excep-
tions, to be <£1,023,56!), and yet one of its chief clerks, whose
duties would seem peculiarly to authorize such information,
is wholly ignorant upon the subject.
The Company, being aware that such information was
sought for by the United States, were bound to have produced
a witness who could give this information.
The fact that Mr. Armit, tlie witness tendered to the United
States, could not give this information, and that the Company
failed otherwise to furnish it, furnishes, we conceive, just sub-
ject for comment, and authorizes conclusions unfavorable to
them.
It was certainly a matter of great importance to the United
States to ascertain the items included under the head of No. 1,
in the prospectus, which went to make up the sum of XI, 023,-
509, because, in this way they could asce.'tain the estimate
placed by the Company, as late as July, 18G3, on their claim
against the United States. The United States called for such
information from the Company, and the witness offered by the
Company is unable to give this information. If this informa-
tion could have been advantageous to the Company, wc have
every reason to presume it would have been furnished. Its
not being furnished is a circumstance against the Company.
Practically, it is the suppression of information whicii it was
the duty of the Company to furnish, when demandeil of them.
This action on the pnrt of the Company necessarily justifies
all inference unfavorable to it.
But we are not left either to speculation or to inferences
founded on the reticence of the Company for means of conclu-
sion respecting the elements of the calculation of values,
wliich constituted the basis of the transfer of the property, as
well of the Puget'S Sound Company as of the Hudson's Bay
Company, to the International Financial Company. Wo
find this clearly explained in the Report of the Delegates of
the Canadian Government, (July 12, 18G5,) as follows; "It
is but two years since the present Hudson's Bay Company
purchased the entire property of the old Company ; they paid
£1,500,000 for the entire property and assets, in which were
1
112
included a large sum of cash on hand, large landed properties
in British Columbia and elsewhere, not included in our ar-
ran<'cment, a very lar<i;o claim a;!;ainst the United States
Government under the Orei^un treaty, and ships, goods,
pelts, and business premises in England and Canada, valued
at i;l,023.o(t9. The value of the territorial rights of the
Company, therefore, in the estimation of the Company itself,
will be easily arrived at." (U. S. Mis. Ev., p. 350.)
Now, let us analyze this sta<-'^ment, presenting its contents,
in the first place, in a sched'.ie, as follows:
llemcmber, the sum total paid for the entire property and
assets purp -'P to be .£1,500,000.
To make u^ mrt this grand total, we liave the enumera-
tion of various icv;ms, specific sums for which are not carried
out, but the sum total of which is .£1,023,509.
Then we may state the following account, according to the
report of the delegates:
1. A large sum of cash in liand £ s. d.
2. Largo latiJud i)rojiorties in British Coliunbia, ami elaewheru.
M. Slii[is
4. (foods
5. Tells
(i. Busiuess-preniise.s iri J'liiglaml
7. ]>iisiiiess-]ireuiises in Catiaila
8. Claua against the United Slates Governuuait
Total .': 1/1 J."., ;•)(;'.)
Add value of the territorial rights of the Company •Kivlol
Giand total .C 1, ')()(), UOO
We entreat the careful attention of the Commissioners to
all and each of the items of this exhibit, and the several sums
not specified, as well as the suras specified.
The territorial rights of the Company include the vast do-
main granted by the charter of Charles II; in that immense
territory, stretching from Canada north indefinitely toward
the pole, and from the Atlantic ocean westward, into beyond
the centre of the continent of America. .Here the Company
is not troubled by the vagueness of possessory rights only;
and it does not need to tortue the vernacular idiom, or to
falsify all the principles of jurisprudence, or to corrupt its
porties
our ar-
Stutes
goods,
valued
of the
' itself,
utents,
I'ty and
lumera-
carried
r to the
(i:i:5,r)(ii.»
,ri(l(),UOO
Mcrs to
il sums
ast do-
menso
toward
)eyond
Impany
only;
or to
ipt its
113
own conscience, in the vain endeavor to transform and magiiif}'
possessory rights into fee simple, as it does in Oregon and
Washington: all such violation of right and of truth is super-
fluous within its chartered limits, resting on IJaflin's bay: there
it has a fee simple by the express grant of the Crown.
Nor, within those limits, does the Company need to exhaust
itself in the vain effort to establish possessory rights in run-
ning water, or respirable air, or in vivifying sun-light; for
all these, in that region, the Company deals with as chartered
pro "(rietor of the soil and lord of the territory.
Moreover, in that vast region, the Company has trading-
posts and structures of residence or business of far more im-
portance than its ruined and abandoned posts in Oregon and
Washington, whether the mud-hovels of Fort Hall, or Fort
Boiso, or the more 'pretentious edifices of Fort Vancouver.
We suppose, also, that as the Company owns the land of
its chartered territory, it also owns the portages, and has no
occasion to fabricate there any hojjus claims in this respect.
We suppose, furthermore, that in that territory the Com-
pany does not need to fly in tiie face of common sense, by un.
dertaking to set up fee simple title to any of the waste pas-
tures where its horses or cattle may have happened to crop
a blade of grass while wandering in the wilderness, or where-
soever any servant of the Company may have happened to
fell a tree or cut a twig in the forest: the Company is driven
to such ridiculous expedients and pretences for the foundation
of fee simple title only when prosecuting claims against the
United States in Oregon or Washington.
And jct,mirabih'. dictu ! whilst the Company, on a regular
and well-considered contract of sale, values the sum total of
its proprietorship, of whatever nature had [)laced in that
vast territory, of earth, water, sky, air, — and all of natural
objects it contains, as aboriginal man, beast, bird, fish, in-
sect, and forest, — and whatsoever of costly improvements tlie
Company has, in the course of more than two hundred years,
introduced there; and whatsoever rights of navigation or trade
its charter, or its misconstruction of its charter, may prompt
it to assert: — all these vast proprietary interests the Company
15
114
deliberately, and on full consideration, in the year 1863,
valued and sold for the sum of ,£476,431; whilst now, it has
the superlative shamelcssncss and assurance to claim of the
United States the sum of =£1,119,850, on account of scattered
possessions remaining to it in Oregon and Washington, of
not one hundredth, no, not one-thousandtL, ,- :. n- ,aiue of
its proprietary rights in the chartered territory of the Com-
pany.
Look we now for a moment into the blanks of the balance
of the price for which the Company sold itself to the Finan-
cial Society.
Into their balance enters not merely a sum of cash in hand,
but a large sum. We know how much that sum is, for which
reason we might fill up the amount in the exhibit, it being
stated (.£370,000) in the Prospectus of the Financial ociety.
There is some question, it is true, whether this cash balance
is a part of, or in addition to, the <£1, 023,509, it being stated
one way at p. 350 and another at p. 28. But, as we shall find
in the sequel, the value of the other items is so great, that it
is quite immaterial whether the particular sum be included in
or excluded from the general amount. If excluded there, it
distinguises th^^ amount to be credited for the territorial rights
of the Company.
Enter, also, not simply landed properties in British Colum-
bia, but landed properties elsewhere also ; where, is not stated,
but certainly not in England, nor in Canada, nor in the
United States; and these are large landed properties.
Then we have ships, who knows how many? We readily
conceive that neither Mr. Roberts, the accountant of the Hud-
son's Bay Company, nor Mr. Armit, the registrar and the ac-
countant of the Puget's Sound Company, can afi"ord to give
us any knowledge on this subject; for we have already seen
that the factors, agents, and clerks of the Company, expatiat-
ing at will in the boundless expanse of their occidental empire,
expend as much money as they please, consume as many goods
as they please, build and sail as many ships as they please,
while transmitting as little money as they please, and sub-
jecting themselves to as little accountability as they please, to
1863,
it has
of the
ittercd
ton, of
iiue of
3 Com-
lalance
Finan-
i hand,
; which
t being
ociety.
balance
; stated
lall find
, that it
uded in
here, it
I rights
Colum-
stated,
in the
'eadily
le Hud-
the ac-
Ito give
ly seen
ipatiat-
^mpire,
jioods
Iplease,
id sub-
ase, to
115
their nominal superiors of the Hudson's Bay House at London.
But that these ma^-iiificent sitirnors and liiiih-mifihtincsses
did have sliips, and those of the best, in ample number, we
may not doubt.
Then wo have "goods" and ''pelts," as distinguished from
"goods."
Pelts constitute the production and result of the business of
the Company, being the natural crops, as it were, of the im-
mense territory between the Atlantic and Pacific seas on the
east and west, and between the inhabited country of the
Canadas and tiie United States on the south, and on the
north the Arctic sea. For wo know that all created animals
in that region are born and live for the sole purpose of being
killed by the Indians for the benefit of the Company, and
that all the Indians therein are born and live for the sole
purpose of promoting the gain of the Company. We imagine,
therefore, though we do not know exactly, the large sum re-
quiring to be entered in the blank left for this item of the
assets of the Company.
Next, we have "goods," which word it is obvious, from the
context, is intended to designate all merchandise belonging to
the Company other than pelts, whether the same be in Eng-
land, in British America, in the United States, or passing to
and fro on the ocean ; cargoes of the ships appertaining to
the Company, and engaged in its wide-spread commerce.
For this merchandise, then and there, large sums must be
enters 1 in the appropriate blank of the exhibit.
Finally, we have the business-premises of the Company in
England and in Canada; of these, no specific valuation is
vouchsafed to us. But we can well imagine that the business-
premises of such a Company must be of great value, in Canada
as well as in England.
As to England, the establishment, denominated in the evi-
dence the Hudson's Bay House, has a name which speaks for
itself as magnitude and value, and for this item, then, another
large sum is to be entered in the proper blank of the
exhibit.
We now appeal to the wisdom and common sense of the
116
.liP
Commissioners to say, after all the above items shall have
been carried out in the exhibit, how much, or how little rather,
can be left as the true appraisement of the claims of the Com-
pany against the United States?
We respectfully submit, that by no possibility can that ap-
praisement exceed the estimate of $700,000 made by Sir John
Pelly, or the sum of $500,000 demanded by Lord Lyons, or,
as a barely possible maximum, the sum of $1,000,000 claimed
by Sir George Simpson.
Here wo ask attention to that most instructive, complete,
and exhaustive estimate and exhibit of the riglits of the Com-^
pany, communicated to the Department of State by Governor
Stevens.
See U. S. Misc. Ev., pp. 209-226.
His appraisement of §300,000 would suffice, relatively to
the other items of the exhibit, to fill up the blank for the
claims against the United States, as mutually appraised by
the Hudson's Bay Company and by the International Finan-
cial Company, in their contract of purchase and sale.
We defy the learned and able counsel of the two Companies
to argue away these facts. No conceivable ingenuity of coun-
sel can serve to shake their strength.
Remember, that this appraisement was made by " competent
valuers," mutually agreed, of course, between the Hudson's
Bay Company and the Financial Society.
U. S. Misc. Ev., p. 21.
Note, also, that the price paid by the Financial Society
for the entire stock of the Hudson's Bay Company was but
£1,500,000: more than two-thirds of which would be paid by
the United States, if the plans of these American speculators
against their own Government succeed, leaving the speculators
in the condition of paying about X850,000 for the entire com-
mercial and miscellaneous property and territorial rights of
the Company ! !
The Company seem to have a chronic habit of setting up
extravagant claims against Government. It appears from Mr.
Brown's report, [Ib.y p. 346,) that the Company demanded of
117
,11 have
rather,
10 Corn-
that ap-
iir John
ons, or,
claimed
implcte,
lie Com-,
overnor
ively to
for the
,ised by
[ Finan-
1 panics
coun-
[ipetent
ludson's
society
us but
)aid by
\ulators
lulators
•e com-
;hts of
ling up
]m Mr.
Ided of
their own Government €1,000,000 for relinquishing their pro-
prietary pretension in the country lying northwest of Canada,
which country tlie Canadian authorities deny ever rightfully
belonged to the Hudson's Bay Company, because at the date
of their charter it was a part of the French possessions in
America.
Upon this point, Mr. Brown, speaking in his official charac-
ter for the Canadian authorities, denies the validitv of such
claim of the Company; but, conceeding it for the sake of ar-
gument, he insists that .£1,000,000 is more than they were
entitled to receive for the relinquishment of all their claims
from Canada to the Rocky Mountains and from the American
line to the extreme north. [Ibid.)
It further appears that certain persons, Sir Curtis Miranda
Lampson, and, it is believed, Mr. jMorgan, banker of London,
and other American citizens, are largely interested in the
Hudson's Bay Company as stockholders thereof. Sir Curtis
Miranda Lampson is named in the Prospectus already referred
to as deputy governor.
The singular spectacle is thus presented of American citi-
zens, under the name and sanction of a powerful British cor-
poration, engaged in urging huge speculative claims against
their own Government. To this peculiar and remarkable fea-
ture of the case we desire to call, as it deserves the attention
of the Commissioners.
The transaction, as represented to the United States and
as proved by the oral and documentary evidence, may be
stated in brief thus : "The London Financial Society aijreed
to purchase up the stock, water it, and then reissue it at an
advanced value, and sell if they could. This was done to a
great extent, but no actual change was made in the organzia-
tion of the Company."
U. S. Misc. Ev., p. 1 and p. 20.
We take it for granted that this operation of watering the
stock of the Hudson's Bay Company, and attributing to it pre-
tended rejuvenescence by the empirical contrivance of infus-
ing into its veins, not a dose of fresh blood, but a very voluuii-
118
nous dose of fresh water, must have been conceived in Now
York.
After the Financial Society had thus hhwn up tlic old car-
case of the Hudson's Bay Company into such simulated con-
dition of youthful vigor, which, after all, was nothing but the
morbid bloatedness of dropsy, it was quite natural, that, while
their hand was in, they should proceed to water the Com-
pany's claim against the United States.
As we understand the stock operation, it was to issue cer-
tificates of <£"20 of the new Company for <£1 of the old Com-
pany.
TV
Th
lie of
lively at hand, th(
JUS rule or proportion oeing suggestively at nana, tne
managers seem to have proceeded to apply it to their claim
against the United States.
The end of which has been, to vjater the claim of the Com-
pany until it came to be watei'-logged, and lies now stretched
out motionless and lifeless, an object of pity and derision to
all beholders.
A little touch of discretion is needed, even in the inflation
of bubbles : which seems to have been forgotten by the manipu-
lators of this branch of the aifairs of the Company.
We pray the Commissioners to note how large was the prop-
erty of the Hudson's Bay Company, independently of these
claims against the United States.
We quote from the Prospectus of the "International Fi-
nancial Society. (U. S. Miss. Ev., p. 22.)
1. The commercial property of the Company.
" The assets of the Company, in which these subscribers will
be entitled to an interest corresponding to the amount of
their subscription, will consist of goods in the interior, on
shipboard, and other stock in trade, including shipping, busi-
ness-premises, and other buildings necessary for carrying on
the fur-trade, in addition to which there will be funds imme-
diately available for the proposed extended operations of the
Company, derived partly from the cash balance of the Hud-
son's Bay Company, and partly from the new issue of stock,
amounting in the whole to a sum of not less than £370,000."
119
in New
old car-
tod con-
but the
it, while
he Com-
isue cer-
dd Com-
md, the
jir claim
he Com-
tretched
rision to
inflation
manipu-
Ihe prop-
lof these
nal Fi-
We submit to the Commissioners that the above-quoted ex-
hibiti
[ers will
)unt of
l-ior, on
;, busi-
ing on
imme-
of the
I Hud-
stock,
.000."
ion, or commercial assets and prcinisos nj)portamiiif:f to
the transaction of the commercial business of the (.'omfjany,
presents an imposing sum total, fur beyond any possible value
of its claims against the United States. If carried out, it must
figure largely as an item of the ,£1,023,569.
2. Miscellaneous real estate of the Company.
" In addition to its chartered territory, the Company pos-
sesses the following valuable landed property: Several plots
of land in British Columbia, occupying most favorable sites
at the mouths of rivers, the titles to which have been con-
firmed by Her Majesty's Government, farms, building-sites in
Vancouver island, and in Canada, ten square miles at La-
cloche, on Lake Huron, and tracts of land at fourteen other
places."
We pray the Commissioners to contrast this exhibit of
the miscellaneous "valuable landed property" of the Com-
pany, with all the pretended property or possessory rights of
both Companies in Oregon and Washington. Contrast the
"ten square miles at Lacloche, at Lake Huron," with the
claim at Fort Vancouver; contrast the "tracts of land at
fourteen other places" with the scattered petty land-claims
of the Company in Oregon and Washington ; cor.trast the
"farms, building-sites in Vancouver's island and in Canada,"
with the farms and pastures of the Puget's Sound Agricultu-
ral Company; add "several plots of land in British Columbia,
occupying most favorable sites at the mouths of rivers, the titles
to which have been confirmed by Her Majesty's <i:>^';jrnment: "
consider all this, and then determine how large a sum, in the
general exhibit of the Company's property and assets, is com-
prehended in the sedulously-modest phrase of " landed prop-
erties in British Columbia and elsewhere," making part of
the XI, 023,569, and how little of that sum will be left attribut-
able to'claims against the United States.
And in the face of all these enormous values in commercial
assets, buildings, lands, water-rights, and other interests,
real and personal, which, in common with claims against the
m
120
United States, p^o to make up the woU-estimatcil sum total
of XI. 023, 5(3!), tlic Huflson's l>:iy Company, for itself and the
Pui^ot's Sound Aj^ricultural Company, had tlio unimaginaI)lo
presumption to come before the Commission ratin^j; its claim
aijainst the United States at the sum of £l,02'>.3r>0 ; about
equal in amount to all its immense recoj^nized miscellaneous
assets, Inchidhir/ this clnini,' and the Company now desire to
amend, by adding nearly £100,000 more to theiv claim, so as to
bring it up nearer still to .£l,r)0O,OO0, the estimated value of
its entire stock, including all its miscellaneous property and
all its vast chartered territorial and proprietory rights in
America.
We employ modest terms when we speak of these rights as
vast; they are truly prodigious in ma^rnitude.
3. Territorial rights of the Company.
"The Company's territory embraces an estimated area of
more than 1,400,000 square miles, or 800,000,000 acr-s, of
which a large area, on the southern frontier, is well a ' 'cd
for European colonization. The soil of this portion \o
territory is fertile, producing, in abundance, wheat and other
ceresil crops, and is capable of sustaining a numerous popula-
tion. It contains 1,400 miles of navigable lakes and rivers,
running, for the greater part, cast and west, which constitute
an important feature in plans for establishing the means of
communication between the Atlantic and Pacific oceans, across
the continent of British NortJj America, as well as for imme-
diate settlement in the intervening country. The territory
is, moreover, rich in mineral wealth, including coal, lead, and
iron."
Here is a marvellous exhibition of property ; nearly one mil-
lion and a half square miles of land, or nearly one thousand
million acres ; of which., a large area, well adapted for coloni-
zation ; fertile, producing cereal crops in abundance, and ca-
pable of sustaining a numerous population ; with fourteen hun-
dred miles of navigable lakes and rivers; rich in mineral wealth,
including; coal, lead, and iron ; all this the undisputed property
of the Company in fee simple, and yet appraised by competent
valuers, arid by free agreement of sagacious and experienced
vendor and vendee at c£500,000; and then contrast this honest
121
no tnil-
usand
coloni-
!ul ca-
ll hun-
ealth,
operty
pctent
ienced
honest
valuation with the dishonest valuation of €1,110,850 finally
placed by the Companies upon the relatively trivial and insiji;-
nificant possessory interests held or claimod by them within
the United States.
While thus analyzing these documents, and comparing the
estimates they contain with those before the Commissioners, in
the memorials of the two Companies, and in the testimony of
their witnesses, it is dilHcult to repress the sentiments of in-
dignation which arise irrepressibly in the mind, or to refrain
from applying to the sordid fabricators of such claims, and
of such testimony, the appropriate language of reprobation
and scorn.
Under ordinary circumstances, it would have been sufficient
to lay these documents before the Commissioners, alongside
of the memorials of the two Companies, and without argu-
ment, as without other evidence, to leave the (Jommissioners
to judge.
But the gravity of an international procedure, before an
elevated international court, seemed to constrain the United
States to a different course; that is, to take up the testimony
of the claimants, man by man, and fact by fact, as we have
done, and to demonstrate the interested exaggeration and
mercenary misrepresentation of the Company's factors, agents,
and instruments, by the overwhelming mass of contradictory
testimony, which we have brought forward, from the lips of a
cloud of witnesses, not surpassable in dignity, general intelli-
gence, especial knowledge, or personal worth, by any body of
witnesses ever produced in any cause in the judicial history
of Europe or iVmerica.
VII. Remarks on legal opinions in favor of the Companij.
We propose to make some brief comments on the legal opin-
ions concerning the Company's rig'ats, referred to in the Com-
pany's argument.
These opinions emanate frjm different members of the
legal profession, living or deceased, including Mr. Richard S.
Co-xe, Mr. Webster, Mr. Josiah Randall, Mr. Edwin M. Stan-
16
122
viPI
ton, and others. The opinions were obtained at the instance
of the Company in the years 1848 and 1849, and were, we
presunie, paid for as professional labor, and collcctcMl in a
printed pamphle*", under the inspiration, it is supposed, of Sir
G. Simpson.
The object of these opinions was to influence favorably for
the Company the negotiations then pending for a settlement
of the Company's claims against the United States.
We find no fault with the procurement of these opinions for
the purpose intended. It was perhaps quite legitimate.
But we submit, that lit'le authority can be given to such
mere ex parte legal opinions thus rendered. They should
more properly be denominated arguments thai opinions. Pro-
fessional gentlemen are often applied to, as on this occasion,
for an exercise of their leijal learning; in such a manner as to
present a certain side of a question in the strongest light.
For this purpose they receive their fee, and for this purpose
they t'xercise their skill. If a lawyer should be so unsophis-
ticated as to render an opinion adverse to his client's interests,
such opinion would not be very extensively promulgated by
the disappointed client, and the counsel who had given such
opinion would not be likely to be called upon for any future
exhibitions of his perverse learning.
If Mr. Daniel Webster, as judge, had, after due considera-
tion, given an opinion in favor of the Company, it would be
justly entitled to great weight. But an opinion from Mr.
Webster as the feed-advocate of the Company has no other
force than its intrinsic merits impart. In such case, his opin-
ion is not to be weighed, it is to be considered.
In these remarks, wo, of course, do not in any degree in-
tend to censure the practice of members of the bar in giving
this class of opinions, but merely to point out their true char-
acter, that they may be received in their proper light, as argu-
ments and not decisions.
With these observations, we now refer to certain points
of tliese opinions, in which we do not concur: without at-
tempting to follow the opinions in the order in which they are
printed in the pamphlet compilation.
123
Mr. R. S. Coxc says :
" It is, I think, clear, that in considering this point, (the rights
of the Company,) reference must be had to the law of En^r.
Jand, which must furnish the rule by which these rights are
to be defined."
Pamphlet, p. 3.
AVedo not consider this proposition as entirely accurate.
If we wish to ascertain under what authority the Company, as
a corporation, were being and acting in the disputed territory
and what privileges they were authorized to exercise, it is
necessary to refer to the laws of England. If, for instance,
that law empowered the Company to carry on exclusive trade
with the Indians in the territory for ten years, with express
denial of all other privilege, and a positive prohibition of
longer extension of time, such action of the English law would
conclusively determine the rights of the Company in these re-
gards. It is upon this ground, that, as we conceive, the Com-
pany s corporate character, and its duration in the territory,
are regulated and determined by the license of trade.
-But when we come to ascertain the possessory rights of the
Company, then, in addition to the English law, we hive to con-
sider the law of the United States, and that by virtue of the
principle of law known as the lev loci rei nta>. This rule of
law is laid down by Mr. Wheaton, as follows:
"The law of a place whore real property is situated governs
exclusively as to the tenure, the title, and the descent of such
property.
Wheaton's International Lav., p. 81.
See further, Iluberus, do r„nflictu Leg., 1, title 3
sec. 15. '
The general rules ns to the transfer of immovable prop-
erty, inter vivos, on which the greatest agreement amon^r the
courts and jurists is found, are that the hx loci rei sitae'^mn^i
govern in determining: 1. The disposition of immovable prop-
erty, (real estate;) 2. The personal caimcit^, to take or to
transfer immovable property; 3. The forii.alitics of possess-
ing title to immovable property; 4. The extent of the do-
m
124
minion over immovable property; 5. The question what is
and what is not real estate.
Wheaton, p. 81, (note.)
Story's Conflict of Laws, (Redfield's edition,) ch. 10,
sec. 424—454.
The first principle of law, to which we call attention in this
connection, is this: The territory was always American terri-
tory. The treaty of 1846 was not a treaty of cession; it
was a treaty of adjustment of boundaries. The treaty did
not confer any new title on the United States. It merely
acknowledged the title already existing. The United States
had hitherto, for a period long antecedent, claimed the terri-
tory as a part of the United States, and this claim was con-
troverted by Great Britain. By the treaty of 184G, the title
of the United States was admitted. The treaty of 1846
therefore was not a treaty of cession: it was a treaty for the
adjustment of boundaries.
The distinction between these two kinds of treaty is well
expounded by Mr. Coxe, in his opinion, (p. 47.) After stating
that, upon the cession of a territory by treaty, the antecedent
titles of land, conferred by the ceding sovereign in the terri.
tory, are binding on the sovereign receiving the cession, he
adds:
" In regard to treaties entered into for the purpose of adjust-
ing controverted questions of boundary, the principles of law
applicable to them are widely dissimilar, if not diametrically
the reverse. Each nation admits by an instrr.meiit of this
character that its former pretensions, beyond the now-adjusted
line, have been unfounded, and that the rights of the other
party were originally valid. By the mere force and effect of
such a settlement, therefore, all the acts of either party,
beyond the boundary now fixed as the limit of its territory,
are annulled and invalidated. The authority of the govern-
ment from which they emanated is admitted to have been ab
ougine, defective and invalid, and any title originating in a
source and resting on a foundation confessedly wrong, cannot
be maintained."
The question of title to land, then, in this territory, is to
125
10,
idjust-
ot" law
rically
f this
justed
other
act of
party,
ritory,
overn-
ccn ab
|g in a
jannot
', is to
be determined, not by reference to English law, but to the law
of the United States.
From these principles of law important consequences flow.
According to the land-law of the United States, as appli-
cable to this territory at the date of the treaty of 1846, there
was no provision, by which title to land could be acquired in
the territory. The lands had not been surveyed, and were
therefoi
)t open t(
to general purchase. The donation law was
not then in existence, and the pre-emption law was inoperative,
because the Indian title had not been extinjiuished. Under
this state of the law, all persons in the occupation of land in
the territory were liable to be treated as trespassers.
To avoid this harsh result, the treaty provided, in exception
of the general principles of law applicable to the case, that
the possessory rights of the Company to land in the territory
should be respected. Without this provision in the treaty,
the Company would have had no rights whatever in land: the
treaty protected their possessory rights, but nothing more.
We think, therefore, we have established the proposition
we started with, namely, that, in determining the rights of
the Company, reference must not be had exclusively to the
law of England; but, on the co irary, so far as question of
title to land is concerned, reference must l)e had to the law
of the United States.
The next correction we make of the opinion of Mr. Coxe is
in reference to the following passage:
" The territory on the west coast of America wa> not com-
prehended within this original charter, but its general pre-
visions have been extended to that region by subsequent nrts.
The statute 40 George III, passed on the 11th of An:^ust,
1803, that of July 2, 1831, the royal grant of 21st December,
1821, and another still more recent, to be found in Groenhow,
extend territorial rights to this northwest country, and modify
in some particulars the terms of the original grant." (p. 4.)
We deny that the territorial rights of the Company were
extended to this " tiorthwcst country," and we call for the
production of any charter or license from the British Crown,
126
or act of tlie British Parliament, extending the territorial rights
of the Company to this region.
By their original charter, the Company were entitled to three
great rights at most, namely : 1, possibly a mi lified jurisdic-
tion ; 2, possil)ly, but probably not, exclusive trade; and, 3,
proprietary title to all lands. But the original charter was
expressly limited to the country around Baffin's bay.
In the country around Baffin's bay, they were in fact the
governing power, with right (if not exclusive) of every kind
of trade, — proprietors of all the soil.
In the northwest country, it was the same Company, it is
true, but with more restricted powers and privileges. They
were not the governing power, though authorized to exercise
certain powers in the suppression of crime; they had only an
exclusive Indian trade; and they were not universal proprie-
taries of the soil. Their rights and privileges in the north-
west country were not by virtue of their original charter, but
under their special license of trade with the Indians.
Mr. Coxe further says:
"Had the territory in question been ascertained to be with-
in the absolute control and sovereignty of Great Britain, it
would have been difficult to prescribe any limits to the terri-
torial rights of the Hudson's Bay Company." (p. 4.)
We shall show in the sequel, by conclusive evidence, that
JNlr. Coxe is totally mistaken in this opinion.
The very condition of affairs, which he supposes conject-
urally might have taken place, with regard to the Company
in this territory, has actually taken place in British Columbia,
and their riglits have received a practical construction from
the British Government, and which, being acfjuiesced in by the
Company, furnishes a conclusive answer to Mr. Coxe's suppo-
sition.
The British Government, by proclamation of September 2,
1858, revoked the license of exclusive trade with the Jndians.
U. S. Misc. Ev., p. 388.
The Company promptly submitted to tliat, as a, legitimate
exercise of power.
127
Upon this subject, Gov. Dougla.s, in his despatch to Sir E.
^- Lytton, of (late of Novomber 27, I808, says •
-It is, perh.p.s, unnecessary to occupy jonv 'time with re-
n. ks concennng the privileges of the Hudson's Bay CW
P-.}, ^ h.ch have ceased to exist in British Columbia.''
u. fe. hv., Mis., p. 303.
Further, we find the following extract in a letter of the
date of November 24, 1858, from John \Vark and Du^aid
MacUvKsh, ch.ef factors of the Company, to Gov. Dougtas :
Ue beg leave to call your excellency's attention to the
0 low.ng hst 0 claims to land in British Columbia, which we
consider as belonging to the Hudson's Bay Company, and
rus that then, title to the same will eventually be confil-med
by Her Majesty's Government."
Here follows the list of fourteen forts.
U. S. Ev., Misc., p. 353.
Here we see no claim of general sovereignty, or universal
piopnetary right, to all the lands of the northwest ; but a
modest petition is made for concessions of title to a few iso-
Jated spots of ground.
The despatch of Governor Douglas, which accompanies this
modest petition, throws a flood of light on the right of the
Company to land in British Columbia.
lie says :
"Ilcr Majesty'. Government may probably conshler that
:quired rights to the soil
],„ ,1 - •, ,. ". 1 -" **•■'• improvement, as well as
by the public service which the Co
tl,« IT 1 ' ,•' n-^ - v^uvurnmenc may probably c
he Hudson s Bay Company have acquired rights to the soil
, . "°^' Pej-missory occupation and °
)mpany have rendered t
the country, and may, therefo
)fjud
icious liberali
re, meet their claims i
n a spirit
pany s possessory rights in 0
ty, especially as the settlement of the C
om-
tion of the third article of tl
regon, rusting on the construc-
le tr
1846, with the United States of A
, ..... ...^ v....tcu oiaies or America, wii
influenced by the decision of Her Majesty's G
allowing or disallowing the nossessorv rLrhr. nf
eaty of the 17th of July
ica, will probably be
allowing or disallowinrr tl
in British Columbia.
Tovernment m
possessory rights of the Company
U. S. Mis. Ey
p. 352.
128
9f
m
To comprehend the full force of these expressions of Gov-
ernor Doughis, it is proper to bear in mind, that he was a
strong partisan of the Company, having long been in high
officiiil position in tts service, and having previously mani-
fested his zeal by giving a strongly-colored deposition in
its favor. Yet Governor Douglas, decided as are his partiali-
ties for the Company, does not venture to claim the sites of
a few obscure forts for it as a matter of right, but appeals to
the grace and bounty of the Government, and this at the very
time when he is seeking to have the business so managed as to
strengthen the Company's claim to lands within the United
States.
We think we may safely conclude, in opposition to the opin-
ion of Mr. Coxe, that there is no difficulty in prescribing
limits to the territorial rights of the Company, in territory of
the northwest, within the absolute control and sovereignty of
Great Britain. This great sovereign power, which assumed
such vast proportions in the imagination of Mr. Coxe, lets
fall its sceptre, and shrinks within the most narrow limits, at
a few written words from Sir E. B. Lytton.
Further, Mr. Coxe says :
"They (the Company) appear, with the knowledge, and at
least the implied sanction of that Government, (Great Britain,)
to exercise an unlimited authority, as well to grant to others,
as also to appropriate in severalty, the absolute proprietor-
ship of such lands as they pleased." (p. 5.)
We know of no fact, which justifies this statement in ref-
erence to the territory in the northwest, including this terri-
tory. We utterly deny its truth. Such statement may be
true in regard to the region embraced within their original
charter, around Baffin's bay; but it is entirely unfounded,
so far as the territory here in question is concerned.
Mr. Coxe has failed to appreciate the decisively-important
fact, that the Company occupied a difi'erent position in
reference to the territory in the northwest, from what they did
in reference to the territory embraced in their original charter.
The Company on Rupert's Land were quite another body from
12l>
in ref-
terri-
|ay be
i";inal
glided,
)rtant
)n in
3y did
ter.
from
what they were on the Columbia. The difterencc between the
Compuny at Yoik Factory and at Astoria, was as great as
was that of the Esist India Comi)any on the Ganges and on the
banks of tlie Thames.
At Norway House, the Company is absolute proprietor of
a vast portion of the continent; iu Oregon Territory, it was
a mere fur-trader, with temporary occupancy of land, and
shorn of all its princely prerogatives.
It is from not keeping in mind this cardinal fact, that
such erroneous impressions have been taken up by Mr. Co.\e
and others, as to the " possessory rights" of the Company.
To illustrate conclusively the erro'' into which Mr. Coxe
has fallen, in the paragraph of his opinion on which we are
now commenting, we ask for a single instance in which the
Company have grante<l to others the absolute proprietorship
of a>i[i lands, as he alleges they have done, in this territory,
west of the liocky Mountains. We deny that a single exam-
ple of this can be found.
Mr. Webster says, in his opinion, speaking of the possessory
rights of the Company : " Some years ago, during the contro-
versy respecting Lord Selkirk's settlement, the nature of
these possessory rights was examined and considered by very
eminent counsel in England, with Sir Samuel Romilly at their
head." (p. G,)
It is evident Mr. Webster falls into the material error of
assuming that the Company had the same power and rights
in Oregon Territory as at Lord Selkirk's settlement on the
lied River of the North. He confounds facts wholly distinct.
The Company claimed the Ued-river country as embraced
in their original charter, and they asserted as large a measure
of rights there, as in the regions lying immediately around
Baffin's bay. But even there the claim was disputed. But
they do not pretend to have had any such power on the
wes.; of the Rocky Mountains. This fundamental error on
Mr. Webster's part, arising, doubtless, from an imperfect ex-
amination of the subject, deprives iiis reasoning and his
opinion of all the authority it might otbcrwise derive from
his great name.
17
130
Mr. Josiah Randall says:
"It is true, the 8d section speaks of the possessory rights
of the Hudson's Bay Company. This is the language used in
treaties when the rights of individuals are intended to be re-
served.'" (p. 17.)
We totally deny this proposition. It is not true. By ref-
erence to various treaties made by the United States, it will
be descovered that such is not the usual language employed
to protect titles.
In the treaty of 1794, between the United States and Great
Britain, it is provided as follows:
" It is agreed that British subjects who now hold lands in
the territories of the United States, and American citizens
who now hold lands in the dominions of His Majesty, shall con-
tinue to hold them according to the nature and tenure of their
respective estates and titles therein.''
U. S. Laws, vol. 8, p. 122.
In the treaty of 1819, between the United States and Spain,
it is provided as follows :
"All the grants of land made before the 24th of January
1818, by His Catholic Majesty, or by his lawful authorities in
the said territories, shall be confirmed to the persons in pos-
session of the lands, to the same extent that the same grants
would be valid, if the territories had remained under the do-
minion of His Catholic Majesty."
U. S. Laws, vol. 8, p. 258.
The treaty between the United States and the Republic of
France, of 1803, provides :
"Art. 3. The inhabitants of the ceded territory sliall be
incorporated into the Union of the United States, and admitted
as soon as possible, according to the principles of the Federal
Constitution, to the enjoyment of all the rights, advantages,
and immrnities of citizens of the United States, and in the
meantime they shall be maintained and protected in the free
enjoyment of their liberty, pioperty, and the religion which
they profess."
U. S. Laws, vol, 8, p. 202.
•y rights
! used in
to be re-
Bj ref-
s, it will
m ployed
id Great
lands in
citizens
lall con-
of tlieir
I Spf
am,
January
'ities in
in pos-
! grants
the do-
nblic of
hall be
Imitted
federal
ntages,
in the
he free
I which
131
The treaty between the United States
as loJlows ;
and Mexico provides
ing ^Iwcans'lol^ri V?Tl '^ '"''^ '^'"^' "^ belong-
spected.'' ' established there, shall be inviolably rl
U. S. Laws, vol. 9, p. 929.
riI?°of ".L"T T'\ '■ V'' "•""'^ "f '^*«' '" ^"f-^^^""" to the
torent J he treaty speaks of " possessory r,V|us " and nr„
vkIcs tliat thcv shall bo rosBected T, „ / ' , ^
».■ by implieaiie,,. "" "'P'"'^'"' It confers no ftle ir. terms
The obll,,aUon to respect "the possessory rights " of the
Conjpany .„ p,.„ ,, „ ,„, ,^,.„,„^^ .^ J^^^^ of «.
cisely the same character in this tronfv .,a Jv. fi i i- •
-u,n„„ hy the Unite,, States in' th::^::! Ta" ledr
orti?e"n l""."' p"' "r "'^ '"'^"''"'^ "f '"'-ost in t J
''posse ,0 ;:,:"" , ^^ *^"""'r^'' oxp,.essly limited to
possessory lights, whereas >n tho case of the other treaties
ere was no such limitation of tho ,uantu,n of interest. Z
« 0 of the phrase "possessory rights- is peculiar to this trea.;
and of course hus a peculiar and appropriate signiBcation.
Hon. E. JI. Stanton, in his opinion, says :
"That exclu.sive possession and dominion, under sanctio,, „f
In this, Mr Stanton has gone far beyond the Company for
they .ly ... ^^.essory rights" in ......Jand^l'a:::
pos'^osViln'T tl' T'^"'"' '" ''" P""^ '' ^^^' -«^^ --J-ive
possession of the territory north of the Columbia was l.^allv
impossible. ;is tho linono« ^e ...„.i , ^ ^"^g^^^J
ly reseri
ot Ainoricar, citizens to use the territory H
nf oil ^4-1. _.. . . •'■ -^^
of all other persons tl
le occu
ive been, as a practical question, in th
the rights
owever exclusive
pation of the Company mi<.ht
e country north of th(
-no
Columbia, in ler^ul intendment it was not exclusive of Ameri-
can citizens, their right of occupation being expressly re-
served. The treaty of joint occupancy was also inconsistent
with any sucli exclusive occupation of a great geographical
division of the territory by the Hudson's Bay Company.
Some of these gentlemen allow themselves to be bctrayod
into singular accuracy of thought and expression, to say tho
least, when they affirm or argue that "possessory rights" and
"proprietary rights" arc equivalent phrases, and one implies
a title of the same dignity as the former.
We might as well argue that the licensee has the same
title as the licensor; tho tenant as the landlord; the pre-
emptor as the proprietor-sovereign of the public domain ; the
Indians, as the Government.
A party who is in possession of land as a mere trespasser, —
who has no pretence or color of title, as against an admitted
real owner of the land, — has, nevertheless, a possessory right,
upon which he can maintain suit against a junior trespasser.
{See Hubbard vs. Little, 9 Cushing, 475; Stearns vs, Hender-
sass, Ibid, p. 497.) But to protend that such admitted tres-
passer is, in fact or law, the true owner, would be absurd, and
mere confusion of language.
Title by possession does not necessarily follow on the pre-
sumption of a grant.
Stearns on Ileal Actions, 238.
Such errors as this, which ccnstitute the very lifo-blooil of
the most elaborate of the opinions under review, serve to
manifest the uncertainty of opinions, not judicial in their char-
acter, made up without contentious argument, and founded on
incomplete facts communicated by interested parties.
The completcst of all these opinions, that of Mr. Coxe, is
from beginning to end mere argument, on partial facts and
imperfect investigation of the law, and strongly illustrates
the inconclusiveness and unauth.oritativencss of the entire
collection.
Not one of these gentlemen could or would hi.ve rendered
such opinion with the present record before him. Any one of
mn
fXC, IS
IS ill) (I
tratcs
lentire
iderccl
lone of
them, — Mr. Coxo, if living, Mr. Stanton now, — wo fool snre
if in aftor life called upon to consider tlio siiltjoct judicially,
would, in view of the adverse facts and ar^uuiciits which the
Government presents, overrule his har opinion as readily as
an upright judge corrects in hunc a hasty ruling at nisi pi ins,
or grants review or new trial on satisfactory exhibition of
error, and would decide this case, in spite of his printed btir
opinion, in favor of the United States, and against the Conn-
pan y.
At the date of those opinions, the legal profession in the
United States were not so conversant with foreign titles as
they had been at an earlier day, in the course of the adjudica-
tion of land claims in Louisiana and Florida; or as they have
since become by study of land-titles in California and New
Mexico.
The last class of titles have been pre-eminently instructive
to the profession.
We begin with the stipulation of the treaty of Guadalupe
Hidalgo, affirming protection and inviolability to property in
the territories ceded by the Mexican Republic to the United
States.
As to the killing of cattle, or trespasses on land, the Gov-
ernment afforded such protection in the shape of proper laws,
and courts of justice open to all for the redress of private
wrongs.
Such protection the Iluilson's Bay Company has been enti-
tled to in Oregon and Washino;ton; and if it has not in fact
been so protected, (which wo deny,) the injury it may thereby
have suffered is imputable to its neglect or gross ignorance
of its rights, or perhaps to its deliberate calculation to get
up a case against the Government.
In the legislation respecting land claims in California anu
New ^Mexico, and in the numerous adjudications thereon, we
have explored the difference between legal or complete titles, —
inchoate or equitable titles, — and mere possessory rights under
license, which are neither legal titles, nor equitable ones, but
only terminable temporary possession, expiring with the
license. In cases of the first and second class, our hiw reports
134
abound; and cnsps of the third class arc not wanting: that of
Dellitrn rn. The United States, licreinheforc cited, being
strikingly similar to that of the HiuUon Bay Company.
VIII. Anthoi'itativc Ojnnions adverse to the Conipamj.
Wiiilo tlw» learned counsel for the Hudson's Bay Company
riclies on opinions contained in the pamphlet, in assertion of
the rights of the Company, he seems indisposed to bring for-
M'ard the very numerous opinions on the subject, which, at
one time or another, have appeared in England. Some of
these opinions were olTiciiil, rendered at the call of the
British (Jovernment : others were unoflicial, obtained by the
Company or its iidversai'ies, especially during the controversy
between the Hudson's Bay Company and the Northwest Com-
pany.
The people of the United States were made acquainted with
the desperate and not bloodless controversy between the Hud-
son's Bay Company and the Northwest Company by the Earl
of Selkirk's printed exposition of their respective claims, and
by the writings of Washington Irving, to say nothing of the
more exact knowledge of the controversy which jurists or leg-
islators acquired by the study of documents and of acts of
Parliament. (See Mr. Cushing's Report, 25th Congress, 3d
Session, vol. 1, No. 101.)
AVe refer to tlie controversy as historical matter, by way of
preface to the following remarkable statement made by Mr.
Edward Ellicc, while testifying, June 3, 1857, before the com-
mittee of the House of Commons, appointed to consider "the
state of those British possessions in North America, which are
under the administration of the Hudson's Bay Company, or
over which they possess a license to trade;" which statement
we quote as follows :
"5822. The Hudson's Bay Company are incorporated under
a charter, I believe ? "
"Tiiey are incorporated under a charter."
"5823. What rights do you conceive that charter to give
them? "
way of
y Mr.
e com-
• " the
ch are
Iny, or
[ement
under
give
185
"I conceive that charter to <^ivo the rights exfircsscd in it ;
some of thoni may l)o doubtful. I ouglit to h(^ able to (.'.\j)ros9
a tolerably fair opinion iipon this subject, since I havcj takiMj
the o|iinion of every lawyer against the ('oinpsuiy when 1 was
opposed to them, and for the (Jompany since \ have been coii-
nccteil with them. We have tlie opinions of Lord Miinsrudd,
Sir Duilley Ryder, Sir llichard Lloyd, Lord Krskine, (Jibbs,
Uomilly, Cruise, IJell, Scarlett, llolroyd ; and the law ollicers
have been consulted upon every occasion by the (Ndonial Of-
fice when this question has come under discussion; and I think
the universal opinion, without an exception, of these eminent
lawyers, is, that the proprietary rights of the Company cannot
be dis[)uted. Some of these opinions maintain the right of the
Crown, at the time of the charter, to give an exclusive right
to trade, founded upon the former decision of 'The East India
Company vs. Sands,' by Lord Jelfrey. Other lawyers are
doubtful upon the poirit. l»ut it is scarcely necessary to in-
quire whether the Crown had the power or not, since, if the
Crown had the power, it has not given the Company any means
of enforcing its rights: we cannot proceed to seize or confis-
cate: at least I should think a lawyer would be in some dilli-
culty before he should advise the Company to take that course:
therefore I hold that to be an extremely doubtful question.
But none of these eminent lawyers, and no lawyer whose opin-
ion I have ever heard quoted either for or against the Com-
pany, or taken either for or against them, have expressed the
least doubt as to the proprietary rights granted under the
charter."
'•5824. By 'proprietary rights,' you mean the rights of pos-
sessing the soil, as distinguished from the exclusive right of
trade 'i
"I mean the same riglits which were granted to other [U'o-
prietors ; honorable members are aware that this is the last
proprietary government in existence. There were, I forget
how many, proprietary governments in AmericA ; Massachu-
setts, Pennsylvania, and various others ; but this is the onlv
case remaining, of a proprietary right, which has not been,
somehow or other, either purchased, or amalgamated with the
general rights of some one of the colonics in America."
Report of Committee on Hudson's Bay Company, p.
827.
Thus we see, that if, in the present case, the Company
needed bar opinions, they could have selected among names
136
V
ml
the highest in the jurisprudential annals of England, from Lord
Mansfield's time, including llyder, Erskine, Gibbs, Romilly,
down to the time of Lord Abinger.
Why does the learned counsel f.jv the Coni|)any pass by all
these persons, and settle down lor authority upon some equally
respectable certainly, bu* not equally authoritative lawyer,
like Mr. George M. Bil 'o? (Mr. Day's Argument.)
To tliis pertinent question there can be but one pertinent
response. The learned counsel had bccoaie aware that, ac-
cording to tlie whole current of legal opinion in England, even
if the Hudson's Bay Company possessed original validity of
incorporation, — which is very doubtful, since the firmest basis
of the Company's life is the fact that it lives, — still the sum
total of its rights, within its chartered limits, is nothing more
nor less than proprietary rights in land.
Such was the conclusion of the Attorney and Solicitor Gen-
ral for the time being, when, in June, 1857, the whole question
was referred to them by the Crown, and they examined it in
the liglit of the opinions of all their predecessors back to the
day of Lord Mansfield.
"NVe quote from their opinion as follows :
" The questions of the validity and construction of the
Hudson's Uay Company's charter cannot be considered apart
from tlie enjoyment that has been had under it during nearly
two centuries, and the recognition made of the rights of the
Company in various acts both of the Government and the
Legislature
''Nothing could be more unjust, or more opposed to the
spirit of our law, than to try this charter as a thing of yester-
day, upon the principles wl'ich miijht be deemed applicable to
it, if it had been granted within the last ten or twenty years.
" These observations, however, must be considered as lim-
ited in their application to the territorial rights of the Com-
pany under the charter, and to the necessary incidents or
consefiuences of the territorial ownership. They do not ex-
tend to the monopoly of trade, (save as a territorial owner-
sl'.ip justifies the exclusion of intruders,) or to tlic I'ight of au
exclusive administration of ju.:tice. ''' ''' *
"In our opinion, the Crown could not now, with justice,
]?.7
of the
apart
nearly
of the
d the
years.
IS liin-
Com-
liits or
)t cx-
)\vner-
of au
listice
raise the question of the general validity of the charter; but
* '•' '•' on every le^jal principle, the Couipany's ter-
ritorial ownership of the lands granted, and the rights neces-
sarily incidental thereto, (as, for example, the right of ex-
)f
clmdng trom tlioir territory persons acting in violation o
their regulations,) ought to be deemed lo be valid.
"But, with respect to any rights of government, taxation,
exclusive administration of justice, or exclusive trade other-
wise than as a consequence or the right ot ownership ot the
land, such rights could not be legally insisted on by tlie Hud-
son's Bav Company as havinsr been lejiallv sranted to them
by the Crown." -^^ * * * • *
The opinion of the Attorney and Solicitor Gen'-.ral, from
which the above extracts are made, appears in thj Appendix
to the Report of the House of Commons. It 's dated July,
1857.
Thus we perceive that the conclusion, which Mr. EUice ar-
rived at, did but anticipate the conclusion of the Attorney
and Solicitor General.
Now, the committee, in their report, clearly show the nature
of the rights of the Hudson's Bay Company, as follows:
" The territory over which the Company now exercise rights
is of three descriptions —
1st. The land held by charter, or Rupert's Land ;
2d. The land held by license, or the Indian te»'"'tory;
3d. Vancouver's island."
It is the second head of rights, namely, the land held by
license, or the Indian territory, in which is comprehended all
right, of any name or nature, which the Hudson's Bay Company
ever possessed in Oregon and ^V.^shington.*
Now, it conclusively appears, not only by the express tenor
of the committee's report, but by the whole body of its evi-
dence, and of the documents appended, that, in the so-called
Indian territory, the Company h :ld nothing but license to
trade; that this license, granted in 1838, was to expire by its
*\Ve reprint the opinion of the Altorne}' and Solicitor General, above referred
to, and also the committee's lleport,, in the ^iiipplement and Appendix.
18
138
own limitation in twenty-one years; and that, whatever tlie
Company ditl, wliatcver it acquired, and whutovcr it held, it
did, acquired, and hchl soltdy and exclusively in virtue of its
terminable license to trade, as granted by the British Crown.
It requires, we apprehend, only one step more to complete
the denn^.istration of the true character of the rights of the
Company in Oregon and AVashiiigton, namely, to exhibit the
revocation of its license to trade, and show the acts of illegal-
ity and usurpation on the part of the Company, which com-
pelled and hastened the revocation of its license.
The revocation is a Royal Sigti Manual, dated September
2, 1858. (Inserted in U. S. Misc. Ev., p. 888.)
Less than two months prior to the date of this Royal Sign
Manual, it became the duty of the Minister for the Colonies.
Sir Edward Bulwer Lytton, to adilrcss to the commissioned
governor of Vancouver island, an<l governor dc facto of Brit-
ish Columbia, a despatch, containing some brief instructions
on general matters, but chiefly devoted to commanding that
governor, — who, as it happened, was the Sir James Douglas of
the Hudson's Bay Company, whose evidence we have in this
record, — to stop the scandalous abuses of power exercised
under his eye by that Company.
We quote as follows:
"But I must distinctly warn you against using the powers
hereby intrusted to you in maintenance of the interests of the
Hudson's Bay Company in the territory.
"The Company is entitled, under its existing license, to the
exclusive trade with the Indians, and possesses no other right
or privilege whatever.
"It is, therefore, contrary to law, and equally contrary to
the distinct instructions which I have to convey to you, to ex-
clude any class of persons from the territory, or to prevent
any importation of goods into it, on the ground of a|»[)roliendcd
interference with this monopoly; still more, to make any gov-
ernmental regulations subservient to the revenues or interests
of the Company.
"1 am compelled, therefore, to disapprove and to disallow,
if still in force, the proclamation of which your despatch
0 tllQ
Iright
ry to
|o cx-
n'cnt
Hided
gov-
[rests
jllow,
)atch
139
transmitted a copy. To fit out boats and vessels to enter
Frazer's river for trade, is 'no infriiiifomcnt of the Hudson's
i>;iy Company,' as that proclamation terms it. Such infringe-
ment only couiinonces when any trading with the Indians is
attempted, and no steps can rightfully be taken to put a stop
to legal acts of this description, on the ground that they may
bo intended for ulterior purposes, infringing on private rights.
For the same reason, to re([uire a 'license from the Hudson's
Bay Company' of persons landing in the territory, is alto-
gether uiijustifiablo.
"I am obliged, for the same reason, to disapprove of the
terms which you have proposed to the Pacific Mail Company.
They ought not to be put under terms to 'carry the Com-
pany's goods and no other;' nor ought they to be prevented
from carrying persons not furnished with a gold-miner's license.
Such license can be properly required of intending diggers
on the ground, but not of persons merel}'' seeking to land on
the territory. Still less have the Hudson's Bay Company any
right whatever to '^xact from passengers any fee or head-
money, by w'ay, as you term it, of 'compensation.'
"Siiould, therefore, the Pacific Mail Company have assented
to these terms, I must, nevertheless, require their being altered,
according to the tenor of these instructions, for the future."
U. S. Misc. Ev., p. 280.
Wo trust that there will be no further occasion for us to
recur to the absurd and utterly groundless pretension of the
Hudson's Bay Company, to having any granted rights in
Oregon or Washington, beyond the naked license of trade
■with Indians of prescribed and definite duration.
IX. Parliamentarij investigation of the Company.
The Hudson's Bay Company, it is now distinctly perceived,
is a corporation invested with proprietary rights in British
America, in virtue of a charter from the Crown, analogous to
the charter granted in the same reign to the Duke of Albe-
marle and his associates, and of the charter granted in previ-
ous reigns to the Virginia Company.
But these last-mentioned Companies, like the great propri-
etary rights of William Penn, of Oglethorpe, and of Lord
Baltimore, were designed, both by the Crown and the grantees,
140
to be enterprises of colonization, and we apprehend that on
the part of the Crown, at least, such was one of the supposed
objects of the Hudson's Bay Company.
That Company, however, either ascertained or imagined
that it could derive more profit from devoting the Crown lands
it had thus acquired to the prosecution of the fur-trade.
But the field for the fur-trade is the uninhabited Avastes of
the earth, or, at any rate, those portions of the earth, which
are but imperfectly occupied by human beings in the very
primitive stage of humanity, savages themselves, and the fit
companions of the wild beasts, which, in common with them,
wander over, rather than possess, the primeval wildernesses.
In order, therefore, to execute its projects, it was necessary
for the Company, not to cultivate the lands granted to them,
but to cultivate the wild beasts thereon ; not to colonize, but
to exclude colonization: in a word, to maintain their possess-
ions in the condition of a desert, the Indians of which should
be the hunters and thf servants of the Company.
And thus it was that the possessions of the Hudson's Bay
Company have continued to be, from that day to this, a blank
on the map of America.
In that vast, uninhabited region, the Hudson's Bay Com-
pany, while they were but the proprietors of land, possesssing
at least no exclusive rights of navigation, or of interior trade,
yet contrived to keep out population, and so, to seem to be
sovereign lords of the territory, invested with prerogative
powers.
But in truth they possessed no such powers. To pretend
to possess them, — to exercise them, in fact, — was mere usurpa-
tion ; just such as they undertook in British Columbia at a
subsequent day, and on account of which they received, as we
have seen, such a verte semonce from the British Government,
promptly followed by the clipping of their wings and depriva-
tion of the further poAver of mischief by the due application
of a lloyal Sign Manual.
When at length the eyes of Great Britain and of the
United States came to be turned toward the /ast unoccupied
region of this continent, in and west of the Rocky Mountains,
141
itcnd
|urpa-
at a
LS we
bent,
[riva-
ition
the
ipied
lains,
a large part of that region was in dispute between the two
Governnient.s.
In tlle^^e circiuiistanccs, the liritish (lovornineiit adopted a
policy, which, whether wise or not, was at least sagacious and
far-sighted in the sense of the object which Great Ijritain had
in view, namely, the ultimate appropriation of the whole, or
of as large a part as possible, of that magnificent future em-
pire on the shores of the Pacific sea. The JJritish Govern-
ment granted to the Hudson's Bay Company a license, dated
May 30, 1838, "for the exclusive privilege of trading with
the Indians in all such parts of Nortii America, to the north-
ward and to the westward of the lands and territories belong-
ing to the United States of America, as should not form part
of any of our provinces in North xVmerica, or of any lands
or territories belonti;innr to the said United States of America
or to' any European Government, State, or Power."
U. S. Misc. Ev., p. 388.
Here, indeed, was no charter of proprietorship, nor even of
colonization; the Company did not receive 'grant of a single
rood of land, and still less of a single atom of running water;
nor of any exclusive right to the use of earth, water, light,
or air; nor any rights of navigation; but the sole and single
right to exclusive trade Avith Indians. Nevertheless, it was a
charter of licensed usurpation and pillage, in the whole of the
described region of North America.
But what was the territory? What portion of America did
the license describe?
All the world knows, — it is undenied and undeniable, — that
the territory described is that which by treaty between Great
Britain and the United States had been previously neutralized
by the two Governments, and in consideration of which it had
been agreed between them, that, whilst open to resitlence on
the part of the subjects of both, it should not be exclusively
occupied by either, nor its land be susceptible of individual
appropriation.
The British Government well anticipated that the Company
would scatter its posts over all that vast region ; and that it
142
K;
I
n
would practicallj, though unlawfully, to the extent of its
moans, o.vcliiile o(jl()iiiz!itio)i, and ovon comnicrco, on tlio part
of citizens of the United States.
And so it proved, to the consequence of so much indigna-
tion in the United States, as witliin a very few years to bring
the two Governments to the verv verueof war, which was only
averted by the conclusion of the treaty, the discussion of
which constitutes th.e staple of the j)resent Argument.
Already it has been sullieiently demonstrated by us that the
Hudson's Bay Company, entering Oregon as a special licensee
only, coulil not acquire, and did not acquire, any proprietary
rights there whatsoever. Presumptuous as the Company
always has been, it did not at that time pretend to any proprlc-
tarij rights, but only to certain pos-'fessor// rights, the same
which are now in liti<j;ation before the honorable Coramis-
sioners.
Jjut the Hudson's Bay Company could not suppress its desire
to do something in the way of the usurpation of land-titles : in
the gratification of which desire, it proceeded at different times,
between April 27, 18-1:6, and April 5, 18 iO, to cause its ser-
vants to enter donation claims in the territory for the benefit
of the Piiget's Sound Company, (see U. S. Misc. Ev., p. 804,
where eighteen of these fraudulent transactions are recorded.)
Dr. Tolmie was himself a claimant in one of the interests;
and the party participant in the transfer of them all to the
Company. And thus the Hudson's Bay Company assumes to
acquire and hold proprietary rights through the medium of its
outgrowth, branch, or parasite, the I'uget's Sound Company,
which it could not acquire and hohl of itself: as if, by agree-
ment among its members, and a little trickery with its servants,
it could make a creature superior to its creator, which is
contrary to Holy Writ.
Meanwhile, as time passed on, the people of Great Britain,
with their singular aptitude for successful colonization, and
the people of Canada, with their natural solicitude for the
development of all the resources of British America, of which
they constitute such a principal part, began to grow restive at
the perception and the reflection of so vast a region of British
143
'ants,
ich is
jitain,
I, and
|r the
ivhich
Ivc at
'itish
America being maintained century after century in the state
of wiMcrncHs, for the single purpose of gatliering potty divi-
diMids for the Ijcnofit of the Hudson's ]>;iy Company.
]Ic'reui)oii folhnved that agitation of the suhjcct in Enghvnd
and Canada, of whicli the evidences appear in this case.
Tlie imineiliate result was a parliamentary in(|uiry, con-
ducterl by a committee, among whose names we find those of
such eminent persons as Mr. Secretary Laboucliere, Lord
John Russell, Lord Stanley, Mr. Edward Ellioe, Viscount
Sandon, Sir John Packington, Mr. (jr lad stone, Mr. Roebuck,
^Ir. Lowe, and Viscount (Jodericli.
Their report settled the fate of the Hudson's Bay Company.
Thenceforth it was shorn of all power in being stripped of the
mystery which had so long shrouded its rights and its acts.
This report is printed in the ^Vppendix.
The revocation of its extra territorial license by Sign Man-
ual followed speedily thereafter.
Ceasing to be a power, the Company was metamorphosed
into a common-place denizen of the stock exchange, by the
skillful manipulations of the International Financial Society.
Its destiny now is, we presume, to surrender ere long its
rights to the Crown, in order that the immense territory, which
it has for so long time used and abused, may at length be
opened to colonization as a province.
Its younger sister, the Russian American Company, which
liad for so many years divided with it the sway of the north-
ern parts of the continent of North America, has already
sunk under causes of decay which are common to both. These
causes are well explained by M. Vattemare, in the " Revue
Contemporaine," as consisting of the persistent endeavor of
the two Companies to continue their fur-trade monopoly, in
despite of their respective Governments.
See extracts from the article of M. Vattemare in the
Appendix.
We suppose the Hudson's Ray Company only awaits the
termination of this cause, to lie down and expire by the side
of the Russian American Company. liequieneat in pace.
144
X. Exceptions to Evidence.
In the course of the examination of witnesses on both sides,
exceptiotis were frequently made and noted, either to the
matter or the form of interrogatories, or to tiie substance of
answers; in some cases, it may be, with, and in some cases
■without, good and sufficient cause.
We find, on revising the testimony, that the discussion of
these exceptions, whether for the purpr o of defending the
legality of questions put by the Government, or of answers
received to questions by it, or for maintaining objections taken
by it tc questions or answers propounded for the Company,
would require great labor, consume considerable time, and
occupy much space, but would not carry with it any conse-
quences of moment, either to the United States or to the
Company.
To take evidence by depositions is in general a tedious and
vexatious task, .alike to counsel, to witnesses, and to commis-
sioner, and especially to counsel, whose patience is prone to
give way under such unfavorable circumstances.
Thus it happens that while both parties are seeking, in good
faith, to bring out, in a competent form, the facts it deems
material, yet each fails to do so, or conceives that the other
fails to do so, and exceptions multiply.
Of all this the Commissioners will judge. Questions or
answers, which they deem illegal, — statements by witnesses,
which may appear to be incompetent, for want of knowledge,
or as being mere opinions in the place of facts, — the Commis-
sioners will reject or disregard.
As to all the matters of controversy, there is so large a
body of evidence on both sides, and so much of it is merely
cumulative, and there is so much of unexceptionable evidence
on main points, that neither party incurs any hazard by the
reception or rejection of any particular parcel of testimony.
Besides which, whilst, in a cause like this, great liberality in
the reception of evidence seems to be desirable, so also, with
a tribunal like this, any evidence, which either party in good
145
K>s or
esses,
ledge,
immis-
Irge a
lerely
idence
ly the
lony.
|ityin
with
[good
faith tliinks itnportant to him, may well be submitted to the
court.
If disposed to criticize evidence in matter or form, we shouhl
move to strilce out the entire mass of opinions for the Com-
pany on tlie subject of values, seeing that such opinions are
but secondary evidence in the absence of book-accounts ; that
few of the witnesses, whose opinions are thus put in, have any
pretension to be deemed experts ; and that the Company, while
confessing that it has in its possession the original books of
cost and expenditure, pertinaciously refuses to produce them,
and suppresses the true and only competent evidence of the
controverted facts.
We have )»estowcd some reflections on this topic, in the
proper place; and we now here, in this relation, adjure the
Commissioners to reject and discard every answer of the Com-
pany's witnesses, every statement or document, which under-
takes to prove value as opinion merely, without being controlled
by the proper accounts of expenditure.
All these observations apply to the documents filed by the
Company, as well as to its oral testimony. Counsel on both
sides have agreed not to exact technical proof of the authen-
ticity of documents, in the absence of any special cause of
suspicion : sul)ject to which understanding, we consign the
whole matter to the discretion and judgment of the Commis-
sioners.
XI. Photographs, 3Iaps, and Plates.
The United States, in consideration of the highly ornamen-
tal descriptions of the witnesses of the Hudson's Bay Company,
in speaking of the structures at some of their posts, and in
consideration of the exair^erated value attributed to the same,
have procured a numljer of photographs of such structures,
including, of course, views more or less exiensive of the adja-
cent country.
Such representations of objects are infinitely more instruct-
ive and satisfactory than the most perfect oral description.
Horace, willi his accustomed curiosa fdicitas, well says :
19
Segnius irritant anitnos clemissa per aures
Quam qufB oculis subjecta fidelibus.
14G
Who, in purchasinf]; an extensive farm and favm-liouso, or
a costl}' cdKice, at a very lav^c cstiniattMl pricu', wouM be con-
tent to buy on the faith of the extravagant (IcscriptioM of an
auctioneer or other agent of the vendor? If the ])roposed
vendee cannot, by liinisclf or agent, visit the property
to be sold, the next best thing fur him is to inspect piioto-
graphs of it, in which the object paints itself with miraculous
precision and certainty, and in a form admitting of indefinite
multiplication of copies. And such is the information regard-
ing many of the structures of the Company, which wc propose
to submit to the Commissioners.
The photograph, marked United States Photographs No.
3, exhibits a direct view of the much-vaunted buildings at
Fort Vancouver, for the better intelligence of which, com-
parison should be had with United States Photographs No.
3i, representing the camp of the British Boundary Commis-
sioners at Fort Vancouver.
The photograph entitled United States Photographs No. G
presents a bird's-eye view of Fort A^ancouver, copieil from a
lithograph in Pacific Railroad Reports, vol. 12, Pt. I.
By means of these photograpiis, it is plain to see not only
the buildings themselves, but the enclosed grounds, and the
relation of the whole to the river Columbia.
Photographs Nos. 3 and 3J- are verified by General Alvord.
No. 3, being the northeast corner of the stockade viewed
from the inside, and embracing the officers' quarters at the
one side and that of the servants at the other, constitutes the
most favorable exhibition possible of the best of the inhabited
structures at Fort Vancouver. U. S. Ev., Pt. II, p. 352.
No. 3|, which the Boundary Commissioners occupied for a
time, represents the northwest corner of tlie stockade, em-
bracing the principal store, and here, of course, we have a
representation of the best of the commercial structures.
(General Alvord, ibidem.)
These two photographs are also botli identified by G. Gibbs,
(U. S. Ev., Pt. II, pp. 41-2 and 521.) .
It needs only to cast the most cursory glance at these edi-
fices, as thus photographed, to see bow false are the descriptions
147
th(
'ord.
;\ve(l
tlic
the
Ited
[or a
om-
Ive a
ires.
bbs
[Clll-
iions
and estimations of tlic officors and servants of the Company
ill this respect, and how just and correct are tiiosc of the
witnesses for the United States.
In No. G we discern not only tlio stochade and its enclosed
edifices near the river, and the scattered huts and small houses
further hack from the river, but also the important mission
buildings, and other small dwellings on the edge of the woods
— these dwellings belong in part to private persons — by the
inspection of which we shall see not only the orditiary char-
acter of the structures of the Company, but also shall gather
some idea of the visionary city of Vancouver.
Photograph No. 1 represents that which is called in the
testimony a "church," but which is in fact only a very hum-
ble mission-house, at the post of Kootenay.
This photograph is identified by A. and C. T. Gardner. (U.
S. Ev., rt. ir, p. 320 and 322,) by Hudson, {Ibid, p. 340,) by
Gibbs, [Ibid, p. 407,) and by Alden, {Ibid, p. 852.)
This building, as we plainly see by the photographs, con-
sists on the sides of six tiers of unhewn logs cut in the neigh-
boring forest, and is testified to be double the size of the only
inhabited building at the post belonging to the Com any, that
occupied by Linklator.
Photograph No. 2 represents wliatever there is of most
value in the structures of the Company at the Fort denomi-
nated Fort Colvile. It is identified by G. C. Gardner, (U.
S. Ev., Pt. II, pp. 194, 197-90,) and by A. J. Cain, {Ibid, pp.
225 and 230 )
Photograph No. 3, which is a view from Fort Colvile, look-
inji across the Columbia, affords instruction reixarditij; the
face of the country, as well as the ordinary style of buildings
therein at the time under consideration.
Photograph No. 9 is a representation of the Company's
mill near Fort Colvile, the sight of which suffices to dispel
the illusory valuations thereof made by the oflTicers and ser-
vants of the Company. It is copied from the Pacific Railroad
Reports, vol. 12, Pt. I.
Photograph No. 4 consists of an exterior and interior view
of Fort Hall, copied from the report of Major Cross, U. S. A.,
148
to the Quartermaster (icneral, contained in the latter's re-
port of .luno ."jOtli, 1850, as communicated to C!')M;L;re.ss.
I'liotograph No. a C(jnsi.sts in like manner of views of tlio
interior and exterior of Fort lioise, copied from pliotographs
in the last above mentioned report.
Each of these photographs serves to contradict unanswer-
ably the testimony of the agents of the Company respecting
the same, and to substantiate that of the witnesses for the
United States.
Photograph No. 7 represents Fort Walla-Walla, copied from
the above-cited volume of the Pacific Railroad Reports.
Great effort was made by the counsel for the Hudson's Bay
Company, who cross-examined witnesses of the United States
on the subject of Walla-Walla, to endeavor to make out won-
derful value, both of buildings and of site. This photograph
fully substantiates the testimony of the United States.
Finally, we have, in Photograph No. 8, a correct exhibition
of the adobe structures at Fort Okanagan, copied from the
same volume of Railroad Reports. For these mud-hovels, the
Company claims i;2,500, while the witnesses of the United
States testify that they are not worth more than $500. That
is to say, the Company claims for these buildings about
twenty-five times their value, as represented by witnesses of
the United States.
By looking at this photograph, the Commissioners have
opportunity to perceive not only the extravagant exaggera-
tion of the claim founded on Fort Okanagan, but also, infer-
entially, in regard to all the other posts of the Company.
The Government also files a number of maps and plats.
No. 1 is a copy of the preliminary Coast Survey chart of
the mouth of the river Columbia. Here we see the position
of Astoria, as referred to in various parts of the evidence;
also. Point Adams; also, Cape Disappointment.
This map is verified, and the notable points upon it are in-
dicated by W. B. McMurtrie. (U. S. Ev., Pt. II, p. 371.)
No. 5 is a special map of a portion of the mouth of the
river, with particular reference to Cape Disappointment, pre-
pared by Capt. Van Buren, from authorities in the Engineer
149
tUo
•t of
lition
|nce ;
Ic in-
1)
the
ipre-
ineer
Dppnrttnont. The basis of it is ii survey tnado by Mr. Ogden,
cliit'l' t'aclMi- of tli(> IliulsMii's Day Coiiiftany.
Also, the objects \\\)i)U it are fully explained by Mv. Mc-
jSIurtrie, (U. S. Ev., Vt. II, p. :J71,) and by Capt. Van JUiren,
(U. S. Ev., Misc., p. o<J7.) Seo also W. Uib.son, L". IS. Ev.,
Pt. Ill, )>. niT.
No. 11 is a copy of the Coast Survey rcconnoissance of
Steilacooni harbor. It is the subject of evidence and expla-
nation by Mr. McMurtrie of the Coast Survey in U. S. I'uget
S. Ev., p. :20G.
Nos. 2 and o are land olTice maps of Oregon and of Wash-
ington, duly certified by the Commissioner of I'ulilic Lands.
These maps, while serving to siiow the {)rogrcss of public sur-
veys to the time of their respective dates, are also convenient
for consultation in reference to many of the localities men-
tioned in the evidence before the Commissioners.
No. G is a plat cojdetl from files in the Land Office certified
by the Commissionei", and representing the Hudson's Bay Coui-
pany's claim at Fort Vancouver, as described in a letter from
chief factor Ballenden, in 18.32, to Mr. Preston, surveyor
general of the territory of Oregon.
This map requires to be consulted in studying the question
•whether of the pretended or of the true limits of the claim of
the Hudson's Bay Company.
The map is of particular interest in controlling the evid-
ence of Mr. Mactavish. (See the letter of acting Commissioner
Whitney to Surveyor General Tilton. U. S. Miss. Ev., p. 2Go.)
No. 8 is a map of the military department of Oregon, pre-
pared at the VV'ar Department, and will be convenient to the
Commissioners in aftbrding a general view of the geography
of the entir*^* region of country concerned with the enquiries
of the Commission.
No. 10 is a British map of the same region of country as
the preceding, copied from one of the Parliamentary Blue
Books.
Portions of this map are obscured by the colored lines upon
the original, which, in the process of transfer by sunliirht.
have been converted into deep dark-colored lines. The
150
strai<:;ht line is but the boundary-line of the 49th parallel of
latitude, and the curve-lines are delineations of the eoasts of
the ocean, bays, and straits.
The particular utility of this map is in illustrating the evi-
dence respecting the position of Fort Colvile, and the Flat-
Head and Kootenay Fo- s.
Finally, we have two maps to illustrate the relation of the
public reserve at Fort Vancouver to the Hudson's Bay
Company.
Xo. 4 was drawn by Lieut. Stuart, in 1850. It is explana-
tory of a notice declaring the reservation, issued at the time
by Col. Loring, commanding the military department. (See
U. S. Misc. Ev., 308.)
The reservation, be it observe 1, saves all the rights of the
Hudson's Uay Company.
No. 2 is the military reservation at the same place, as sur-
vey cvl in 185l>, under direction of Gen. Harney.
In order to the better understanding of this map, it is woU
to compare with it the photograph No. 0, exhibiting a bird's-
eye view of Fort Vancouver.
(F.) — Conclusion.
Having thus dismissed at length all such questions of fact,
or of law, as it seemed necessary, in the interest of tiie United
States, to considei, it only remaitis for us, in tlie way of re-
trospect, or rcsiunc, to state the propositions which, in one
form or another, constitute the basis of this ar<;utnent.
1. The Hudson's Bay Company is the chartered proprietor
of the territory of Rupert's Lan<l.,
2. Within its chartered limits, the Company was invested
in fact, though by doubtful legality, with the quality of owner
of the soil, including such proprietary rights as appertain to
a grantee under the Crown.
3. Within its chartered limits, even, however, the C'^mpanj
does not possess the functions of sovereignty, or prerogative
powers of <any deicrirtion.
4. Whether or not, within those limits, the Company enjoys
F fact,
:iitc(l
of ro-
ll one
)vietor
"osted
lowlier
lain to
151
any rirrhts of exclusive trade, — and if perchance, by letter of
charter, it holds any such, — it is destitute of any legnl means
for their enforcement, and they cannot be rightfully main-
tained.
5. These arc the ancient rights of the Company; but by
recent especial grant, it exercises or possesses some particular
rights, immaterial here, within British Columbia.
G. This Company, in the year 1888, while the territory now
constituted as the Htate of Oregon and territory of Vv^ashington,
•was in litigation between <ireat JJritain and the United States,
entered therein, under and by virtue of a license from the
British Crown for the exclusive trade with the Indians thereof.
7. This license by the British Crown was, in spirit and effect,
if not intention, an act of semi-hostility toward the United
States, being contrary to the true construction of the conven-
tion rejiulatini; the respective ad ('nterim ri -hts of the two
Powers in the disputed territoi-y.
8. Jjut the license, in so far as it professed to grant privi-
leges of exclusive trade with Indians, could only operate against
British subjects, and was nugatory as respects citizens of the
United States.
9. The license did not profess to grant to the Company any
exclusive v\<A\t of navi^atinn; the waters of the territorv : the
said wat ,rs continued to be free aud open high. ways, at least
to all citiv.c^Mis of the United States.
Sec, in confirmation of the preceding points, in addition to
authorities and arguments previously presented, the memorial
of the Hudson's Bay Company, on the showing of which the
license was granted by Lord Glenelg, and the license itself, in
the Appendix, Nos. 7 and 8.
See, also, in the Appendix, extracts, of the same period, from
lettf^i's of Sir John Belly and Sir George Simpson, exhibiting
the inducements of aggression, usurpation, and hostility, as
respects the United States and the Russian Einpire, l^y wincii
ipany
the Company then professed to be goveriuMl ;uid guided, and
^ative
which constituted the avowed objects of its jn'etension to favor
froui the British Govurnment.
njoys
i
i'S*
Et'«!
li
r
i
152
10. The Company could not, and did not, acquire any pos-
sessory rif/hts, as distinguished from mere common use, in the
trade of said territory or in its navigable waters.
11. Tiie license did not confer on the Company any proprie-
tary rights in said territory: if it had professdl to do so, the
grant would have heen null and void. It was legally impossi-
ble for the Company to become the owner of any land there,
in view of the peremptory prohibition of the treaty regulat-
ing the relations of the two Powers.
12. Under its license, the Company lield, for a term of years,
certain rights against the British Crown, which, whether or
not entitled to be denominated possessory rights, would expire
absolutely, by reason of their legal quality and their intrinsic
nature, with the termination of the license.
13. That license, in so far as regards any effect it might
have, or any conse(iuences relatively to the United States,
expired with the local power of the licensor, namely, on the
conclusion, in 184G, of the joint occupancy of the two Gov-
ernments, and the devolution of the territory to the United
(States.
14. The United States does not hold the dominion aiid sov-
ereignty of Oregon and Washington in virtue of any cession
bv Great Britain, but in virtue of original and antecedent
right, recognized as such by Great Britain.
The United States were sovereign Je jure during the joint
occupation, although exercise of such sovereignty, in fact,
was for a time partially suspended or '■ ^Id in abeyance by
convention.
1"). Whatever claim, if any, the Hudson's Bay Company
(including the Puget's Sound Agricultural Company) holds
against the United States, it holds by grace and favor, under
the treaty dissolving the joint occupation of the two Powers,
and not otherwise.
10. The sole premises of such claim are in the voluntary
engagement of the United States to protect the possessory
rights, if any, belonging to the Company.
IT. Such possessory riitlil.-*, in any the largest possible legal
I sov-
jssion
jedcnt
joint
fact,
CO by
ipany
holds
in (I or
hvcrs,
[ntary
issory
I legal
153
or equitable construction thereof, could only rest in fixed and
valuable improvements on land, whereof the fee simple, as well
as the sovereignty, had always been and still was continuously
in the United States.
18. All other rights, which the Company might have had,
if any, within the territory, ceased to exist on the termi-
nation of the joint occupancy : they became a nonentity, and,
of course, not existing, they were incapable of being protected,
and could not have been intended or comprehended by the
treaty as possessory rights.
19. Reducing, then, the possessory rights of the Company
to their true proportion, as improvements made on the land
of another by a tenant at suflfrrance or a licensee, therefore,
on his leaving the land, the ordinary rules of law apply to
the question of the value of such improvements.
20. By no conceivable rule of right, by ro doctrine of jus-
tice, to be found in public or private law, or in the construc-
tion of treaties, or in international jurisprudence, has the
Company here any claim to the fee of land, or indemnification
for being dispossessed thereof, or consideration for the transfer
of the same to the United States.
The fee simple belongs now, as it always did belong, to the
United States, and cannot pass to its owner by transfer from
the Company, which is not its owner.
21. The Hudson's Bay Company, including the Puget's
Sound Company, has no pretension of right to indemnification
by the United States for cattle, hr rses, or sheep injured or
destroyed by private persons, or for any damage done to its
improvements by such persons: for the redress of such wrongs
the courts of justice in Oregon and Washington were open to
the Company, as to all other inhabitants of or sojourners in
the United States.
22. As the fee simple of any and all lands ever occupied by
the Company belongs to the United States, and as all preten-
sion of right of continued occupation by the licensee Company
expired with the power of the licensor Government, or, at
the latest possible day, on the revocation of the license by the
licensor, the Company has no interest in any prospective value
20
/
154
in
of the land by reason of the act lai or contingent location of
railroads, or the actual or contingent foundation of cities or
towns: — all claims founded thereon are groundless and false :
the Company has no claims in this behalf beyond the actual
value of itr, own improvements.
Wc make the point distinctly, because misapprehension in
ibis respect is the excuse for most of the extravagant estima-
tions of value by witnesses for the Company.
Compare, for example, the opinion of one of the witnesses,
(AV. 11. Farrar,) in II. B. Co.'s Ev., p. 251, witli the explana-
tion and contradiction thereof by the same witness, in U. S.
Misc. Ev., p. 183.
23. The Company has no equities to set up ; it has abused
all its rights; it has been guilty of numerous acts of usurpa-
tion; it has been, and is, a mere incumbrance and dead-weight
on the British Provinces, by reason of its anti-colonization
policy ; it wrongfully engrossed and monopolized for a series
of years the commerce and production of Oregon and Wash-
ington, committing strip and waste there at will, pasturing its
herds on the public domain, cutting and exporting timber,
and otherwise acting as universal owner, greatly ♦'o its ad-
vantage and to the injury of the United States ; and its claims
are to be measured by no rules but those o^ (^trktit^simuni. jus.
24. As full satisfaction of all the just claims of the Com-
pany, and as adequate compensation for the transfer of its
rights to the United States, including those of the Puget's
Sound Company, an ample sum (.$300,000) was proposed by
Governor Stevens.
Governor Stevens exhibits in detail the elements of his
estimation.
We possess evidence from the Company which strikingly
confirms his estimate. It is the onumerotioii of all. the estab-
lishments of the Company, which v.'o find appended to the
reports of the House of Commons' committee, p. 3G5.
This document bears unimpeachable testimony to the fraud-
ulent exaggeration of values attached by the Company to its
assumed rights in Orefjron and Washington.
The total number of all the posts or establishments of the
15')
lof liis
dngly
Icstab-
to the
ttVand-
to its
)f the
Company at the date of that enumeration (ISofJ) was one Inm-
dred and fifty-four.
Many of them arc of greater magnitude and importance
tlian Fort Vancouver. We shall do no injustice to the Com-
pany in averar/lnr/ all tliese posts, for the purpose of cstiinat-
in<j ainxrcicato and comparative values. Tin' ll><i includes i\7s-
cjvalJii and CowUtz, act do/ru as cutatd/'shuieut.s of the Ifinhoii's
Bnif Cnrnpanji.
Deducting from the sum total the posts in Oregon and Wash-
ington, sixteen in number, (Cowlitz appearing twice in the
memorials,) the balance of one hundred and thirty-eight rep-
resents the other posts of the Company.
Now, by rule of proportion, if the 1(1 posts within the I'nitcd
States are of the value of. say, £1,000,000, (the claim is Xt,-
025. o80.) then the roaainiii;/ posts (138) are of the value of
.£S, 025, 000. This result does not include com)iierci(d assets,
such as ships, merchandise, pelts, and cash on hand, as per
the cxliibits of the International Financial Society. Adding
those, and aduling the present claims, we should roach the re-
sult, not of £1,500,000, but of nearly £12,000,000!! as the
actual value of the property of the Hudson's IJay Company.
Let us now reverse the terms of the proportion. Take, ac-
cording to the appraisement of the Company's property on sale
to the Financial Society, XI, 500,000 as the value of the entire
property; deduct, say, £500,000 for cash, ships, merchandise,
and pelts, (which is a deduction much below the probable
truth,) and there remains XI, 000, 000 as thofidl value of all
the territorial rights and 7'eal estate of the Company.
If 1(U posts, averaged, be worth £1,000,000, then It) of these,
taken at hazard, can be worth only COT, 5(10, — say >^407,800 for
all the [)osts in Oregon and Washington.
]jut still, even that reduced sum will be grcatl;.' in excess ; for
we did not make any deduction from the £1,000,000 of assumcMl
total real estate for the territorial rights of ilu- (Jompany :
they wore left included, llow much ouglit we to allow for
them 'i On the lowest calculation we have bet-u able to make
of them, they stand, in the Company's appraisement, at
X47G,4jJ1. (See supra, p. 112.)
i I .). ,.i««ii;f.i jt"»»»*».-«
156
%mi
,11;
1-
i
£9
W-'^
If, now, we deduct this from the assumed .£1,000,000, wc re-
duce it nearly one half, and the result Avill approximate to,
say, $250,000; which in our judgment is a large estimation of
the value of the rights of the two Companies, and substan-
tiates the favorableuess of the calculation of Governor Stev-
ens.
25. When the British Government undertook to negotiate
this matter, the sum which it proposed, ($500,000), was greatly
in excess of any just valuation of the rights of the two Com-
panies.
26. The sum previously proposed by Sir John Pelly ($700,-
000) was still more largely in excess of any such just valuation.
27. When Sir George Simpson undertook to value the
claims of the two Companies at §1,000,000, the claims passed
out of the domain of reason or justice, and sank into the
category of fraudulent excess and attempted extortion.
28. And, finally, in the present aspect of the claims of the
two Companies, as they stand before the Commissioners, and as
tested by the evidence in the record, those claims, over-stated
and exaggerated as they are, by interested witnesses, to millions
in amount, must of necessity be characterized as a mere specu-
lative adventure under the International Financial Society's
auspices, of audacious and stupendous fraud against the Gov-
ernment of the United States.
All of which is respectfully submitted, by
0. CusHir?a,
Counsel for the Unitii States.
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11